<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:94844.wais]
S. Hrg. 108-537
IMPROVING THE ADMINISTRATION OF JUSTICE: A PROPOSAL TO SPLIT THE NINTH
CIRCUIT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 7, 2004
__________
Serial No. J-108-64
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Administrative Oversight and the Courts
JEFF SESSIONS, Alabama, Chairman
CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York
ARLEN SPECTER, Pennsylvania PATRICK J. LEAHY, Vermont
LARRY E. CRAIG, Idaho RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas RICHARD J. DURBIN, Illinois
William Smith, Majority Chief Counsel
Jeff Berman, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho..... 7
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 4
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 5
prepared statement........................................... 99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 101
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
prepared statement and attachments........................... 184
WITNESSES
Coughenour, John C., Chief Judge, District Court for the Western
District of Washington, Seattle, Washington.................... 46
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska.... 8
O'Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth
Circuit, Portland, Oregon...................................... 14
Schroeder, Hon. Mary M., Chief Judge, Court of Appeals for the
Ninth Circuit, Phoenix, Arizona................................ 11
Tallman, Richard C., Judge, Court of Appeals for the Ninth
Circuit, Seattle, Washington................................... 18
Tjoflat, Gerald Bard, Judge, Court of Appeals for the Eleventh
Circuit, Jacksonville, Florida................................. 43
Wallace, J. Clifford, Senior Judge, Court of Appeals for the
Ninth Circuit, San Diego, California........................... 21
QUESTIONS AND ANSWERS
Responses of Mary M. Schroeder to questions submitted by Senator
Feinstein...................................................... 51
SUBMISSIONS FOR THE RECORD
California Academy of Appellate Lawyers, Jerome I. Braun, for
James C. Martin, President, Los Angeles, California:
letter April 19, 2004........................................ 55
letter February 24, 2004..................................... 57
California Public Defenders Association, Michael T. Judge,
Chairperson, Legislative Committee Sacramento, California,
letter......................................................... 58
Cebull, Richard F., District Judge of Montana, Billings, Montana,
letter......................................................... 61
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho,
prepared statement............................................. 62
Coughenour, John C., Chief Judge, District Court for the Western
District of Washington, Seattle, Washington, prepared statement 64
Curley, Sarah Sharer, Chief Judge, District of Arizona,
Bankruptcy Court, Phoenix, Arizona, letter..................... 68
Ensign, Hon. John, a U.S. Senator from the State of Nevada,
prepared statement............................................. 71
Federal Bar Association, Joyce E. Kitchens, National President,
Atlanta, Georgia, prepared statement........................... 73
Haddon, Sam E., District Judge, District Court of Montana, Great
Falls, Montana, letter......................................... 75
Hawaii State Bar Association, Dale W. Lee, President, Honolulu,
Hawaii, prepared statement..................................... 76
Kleinfeld, Andrew J., Circuit Judge, Court of Appeals, Ninth
Circuit, Fairbanks, Alaska, letter and attachment.............. 78
Locke, Hon. Gary, Governor, State of Washington, Olympia,
Washington, letter and attachment.............................. 103
Los Angeles County Bar Association, Robin Meadow, President, Los
Angeles, California, prepared statement........................ 107
Malkin, Harold, Esq., Seattle, Washington, letter................ 109
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska,
prepared statement and attachments............................. 111
Nielsen, William Fremming, Senior U.S. District Judge, Eastern
District of Washington, Spokane, Washington.................... 120
O'Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth
Circuit, Portland, Oregon:
prepared statement........................................... 122
letter, May 7, 2004.......................................... 140
Perris, Elizabeth L., Bankruptcy Judge, Oregon Bankruptcy Court,
Portland, Oregon, letter and attachment........................ 144
Roll, John M., District Judge, District Court of Arizona, Tucson,
Arizona
letter, October 8, 2003...................................... 150
letter, November 4, 2003..................................... 154
letter, April 5, 2004........................................ 160
letter, April 29, 2004....................................... 168
letter, May 21, 2004......................................... 170
Santa Clara County Bar Association, Lisa Herrick, President,
Santa Clara, California, prepared statement.................... 173
Schroeder, Hon. Mary M., Chief Judge, Court of Appeals for the
Ninth Circuit, Phoenix, Arizona:
prepared statement........................................... 175
letter, April 19, 2004....................................... 180
letter, May 5, 2004.......................................... 182
State Bar of Arizona, Pamela A. Treadwell-Rubin, President,
Phoenix, Arizona, letter....................................... 203
State Bar of California, Charles V. Berwanger, Litigation
Section, San Franclsco, California, letter..................... 204
Tallman, Richard C., Judge, Court of Appeals for the Ninth
Circuit, Seattle, Washington, prepared statement............... 207
Tamm, Bradley R., Attorney at Law, Honolulu, Hawaii, letter...... 226
Thomas, Sidney R., Circuit Judge, Court of Appeals, Billings,
Montana, letter................................................ 228
Tjoflat, Gerald Bard, Judge, Court of Appeals for the Eleventh
Circuit, Jacksonville, Florida, prepared statement............. 244
Van Sickle, Fred, Chief Judge, District Court, Eastern District
of Washington, Spokane, Washington, letter..................... 268
Wallace, J. Clifford, Senior Judge, Court of Appeals for the
Ninth Circuit, San Diego, California, prepared statement....... 270
Witherspoon, Kelley, Davenport & Toole, Attorneys & Counselors,
Spokane, Washington:
Bhan T. Rekofke, Harvey Saferstein, Margaret Carew Toledo,
letter, April 21, 2004..................................... 275
Leslie R. Weatherhead, letter, April 21, 2004................ 277
IMPROVING THE ADMINISTRATION OF JUSTICE: A PROPOSAL TO SPLIT THE NINTH
CIRCUIT
----------
WEDNESDAY, APRIL 7, 2004
United States Senate,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, Chairman of the Subcommittee, presiding.
Present: Senators Sessions, Kyl, Craig, and Feinstein.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Chairman Sessions. Good morning. The Subcommittee on
Administrative Oversight and the Courts will come to order. I
am pleased to convene this hearing on the division issue of the
Ninth Circuit. I think we have great panels today, and I look
forward to a very interesting and informative hearing.
I guess the first question one would ask is why are we
discussing a division of the Ninth Circuit now. To answer that
question, we need to appreciate the basic purposes of a Federal
court of appeals. In our Federal judicial system, an appellate
court has two basic functions. First, it must review lower
court and agency decisions. In this regard, it acts effectively
as a court of last resort, since the Supreme Court reviews very
few courts of appeals decisions each year.
Second, to borrow from Chief Justice Marshall's famous
opinion in Marbury v. Madison, it must say clearly and
consistently ``what the law is'' for that circuit. Uncertainty
in the law frustrates litigants, encourages wasteful lawsuits
and undermines the rule of law.
We will discuss today with regard to the circuit the
fundamental facts of it, its size, and discuss the pros and
cons of division. We will not be discussing opinions or
judicial philosophy or matters of that nature. I think that is
not really what we should be about today.
How well does the Ninth Circuit fulfill the basic functions
I outlined earlier? We start with some facts. The Ninth Circuit
is the largest circuit in our system by far. It covers almost
40 percent of the land mass of the United States. It stretches
from the Arctic Circle to the border of Mexico and rules almost
one-fifth of the population of the country.
It now has 28 authorized judgeships--11 more than the next
circuit, as this chart shows, and almost 17 more than the
average circuit. It has 21 senior judges, who provide a great
service to the court. Many senior judges carry virtually a full
caseload, and I know with the caseload you have in the Ninth
Circuit you wouldn't be able to get along without them.
It is therefore not much of an exaggeration to say that the
Ninth Circuit panel assigned to a particular case, when you
have as many judges as you can draw from, is a sort of luck-of-
the-draw panel. In addition, district judges are called up to
sit, and visiting judges from other circuits are called to sit
on panels.
The Judicial Conference of the United States has
recommended that the Congress create seven additional
judgeships for the Ninth Circuit. If we did so, the court would
have 35 active judges, making it even larger. Nobody would
claim that our Supreme Court could function with 35 justices.
In fact, I am not aware of any court in America of this size.
Why should we feel any different about the Ninth Circuit
with 35 active and 21 senior judges, given that the court of
appeals is the court of last resort in the vast majority of
cases? Counting senior judges, the Ninth Circuit would be twice
the size of any other circuit.
Moreover, as this chart illustrates, the caseload of this
large circuit has exploded in recent years. In 1997, about
8,700 appeals were filed. In 2003, there were almost 13,000--a
48-percent increase, or over 4,000 more appeals in just 6
years. This huge increase in caseload appears to have impaired
the administration of justice. The Ninth Circuit's efficiency
in deciding appeals--that is, the time the court takes between
the filing of a notice of appeal and the final disposition of a
case--consistently has lagged behind other circuits. In 2003,
for instance, the Ninth Circuit had 418 cases pending for 3
months or more--25 shy of the next five circuits combined. The
next highest circuit had 98 cases.
The next chart shows that 138 cases were pending in the
Ninth Circuit for over a year. This was more than every other
circuit in the Federal court system combined, with the next
highest circuit at a mere 19 cases. This delay cannot be
explained solely by lack of judgeships. Although the caseload
is high, several other circuits have higher caseloads per
judge. Thus, it appears that the first function of a court of
appeals--reviewing decisions from below--may not be performed
as well as it could be.
If population growth is any indication, the problem is
quite likely to get worse. As you can see from this chart, the
population of the States within the Ninth Circuit grew faster
than that of any other circuit between 1990 and 2000. That
population is projected to grow even more substantially between
1995 and 2025, as this chart demonstrates. With the higher
caseload that those millions of new residents will bring, the
administrative challenges can only grow.
How about the second function? Are Ninth Circuit judges
able to speak with clarity and consistency on what the law of
the circuit is? This, too, appears doubtful. Because the
circuit has so many judges, it is difficult to preserve the
collegiality that is so important to judicial decisionmaking.
As D.C. Circuit Judge Harry T. Edwards eloquently argued,
quote, ``In the end, collegiality mitigates judges' ideological
preferences and enables us to find common ground and reach
better decisions. In other words, the more collegial the court,
the more likely it is that the cases that come before it will
be determined on their legal merits.''
Additionally, the Ninth Circuit employs a limited en banc
procedure under which it is not the full court of appeals, but
a random draw of ten judges, plus the chief judge, that reviews
three-judge panel decisions. This can result, and often has
resulted in a mere six judges making the law for the entire
circuit. In all other circuit, en banc means en banc--the full
court.
Finally, with so many cases decided each year, it is hard
for any one judge to read the decisions of his or her peers,
and it is virtually impossible for lawyers who practice in the
circuit to stay abreast of the law. Judge Becker, a
distinguished judge of the Third Circuit, has explained that,
quote, ``When a circuit gets so large that an individual judge
cannot truly know the law of his or her circuit...the circuit
is too large and must be split...I cannot imagine a judge in a
circuit as large as the Ninth, with its staggering volume of
opinions, being able to do what we in the Third Circuit do.''
These factors--loss of collegiality, the limited en banc, and
an inability to monitor new law--undermine the goal of
maintaining a coherent law of the circuit.
Chief Justice Rehnquist and Justices Stevens, O'Connor,
Scalia and Kennedy publicly have agreed that structural reform
was needed. No Justice on the Supreme Court has disagreed.
These jurists voiced their concern 6 years ago. Today, the
Ninth Circuit issues almost 50 percent more decisions than it
did then. It is difficult to argue that Ninth Circuit judges
and lawyers receiving the flood of opinions find the law any
more coherent.
So is this a circumstance in which the Congress should
exercise its constitutional power to ordain and establish new
inferior courts? Several of my colleagues are here today to
help answer that question. Senator Murkowski, of Alaska, has
been a leader in addressing reorganization of the Ninth Circuit
and has introduced a bill to that effect. I am sure her
comments, in a moment, based on her experience as a Senator
from Alaska and a lawyer who has practiced within the Ninth
Circuit, will give us a useful context for understanding the
issue.
I would also like to commend my colleague, Senator Dianne
Feinstein, who is the Ranking Member for this hearing, for her
interest in Ninth Circuit reorganization. Senator Feinstein has
long advocated that the Congress look at objective measures in
determining whether or not to split the circuit, and has wisely
insisted that any division serve administrative, not political
purposes.
In fact, the very title of this hearing borrows from a
speech she gave on the Senate floor several years ago in which
she stated, ``That is the fundamental question: Would a split
improve the administration of justice and, if so, what should
that split be?'' Senator Feinstein asked the precise question
that we intend to focus on in this hearing, and I look forward
to the insights from our distinguished group of witnesses.
Senator Feinstein, would you like to make opening remarks?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
would like to begin by welcoming our distinguished witnesses. I
also particularly want to thank the Chief Judge, Judge
Schroeder. I know she had other plans and she changed those
plans to be here. I think it is very important that she be
here, and I am delighted that you were able to accommodate the
Subcommittee. It means a great deal to us, so thank you very
much.
The issue of whether to split the Ninth Circuit has come
before us many times before. It was introduced in the 98th
session of Congress and virtually every session since that
time. Some have said the court, with its 57 million citizens,
is simply too large and that there need to be greater
efficiencies and those efficiencies could be done if the court
were smaller. Others hint that California judges have a liberal
bent which is coloring decisionmaking in that circuit.
I believe that we really have to look at this circuit in
view of its increasing size. Frankly, I was amazed to see that
the caseload in 1 year, from 2002 to 2003, has gone up by 13
percent, with 12,782 additional cases. That is more than some
circuits even have in the entire year, and it is just the
increase in the Ninth Circuit.
I think we have to look anew at travel time and how much
time is spent in extraordinary travel; the circuit is so large.
In reading last night the comments of some of the judges who
are going to testify, I would like to urge them to spend some
time in their remarks before us about the en banc proceedings.
I, for one, very much appreciate the court's accommodation
to our request that you hold more en banc hearings, and I
believe, in fact, you have. But the question arises, even with
11 judges en banc, it still means that 6 judges effectively
determine precedent for the entire circuit.
The final one, and where most, I think, students of circuit
split come down is do the judges themselves and the legal
profession itself want a split in the circuit. Now, we have
eight judges, senior and active judges, who say they would like
to have a split. I think those reasons are very important to be
examined.
Additionally, the circuit has instituted a number of new
administrative procedures. I think it is very important that we
take a look at those procedures and see if technology alone is
enough to accommodate reduced collegiality.
Some feel the Ninth Circuit has become extraordinarily
impersonal. Does that meet the test of circuit law in an
adequate way? Some say judges are so stressed and busy with the
largest caseloads in the Nation that they can't really keep up
with the law. Is that, in fact, the case today or is it not?
One of the problems we have had is that people take sides
in this. You are either for a split or you are against a split,
and you develop a defensive posture and therefore you really
can't look, I think, with an open mind at changing needs of the
circuit. So I actually welcome this hearing, and perhaps I look
at it with a much more open mind than I have in the past. And
this really driven by this enormous 13-percent increase in
caseload 1 year after the other.
Mr. Chairman, the American Bar Association, under date of
April 6 of this year, has produced a letter which I would like
to enter in the record, but I would like to read one paragraph
from it, if I might.
``Statistics compiled by the Administrative Office of the
United States Courts and submitted to Congress annually
demonstrate that the circuit is functioning very well and
utilizes its resources effectively. In fact, even though
filings increased by 13 percent during the 2002 fiscal year,
the Ninth Circuit terminated 11.7 percent more cases in 2003
than in 2002. Disposition times for the Ninth Circuit also have
steadily improved over the last few years and compare favorably
with times of other circuits in many respects. For example, the
Ninth Circuit was the second fastest circuit in terms of median
time from the date of first hearing to final disposition--one-
and-a-half months. Similarly, the Ninth Circuit's median time
from submission to disposition was a record-breaking .2 months.
These and other statistics readily available from the
statistical reports presented by the Administrative Office
amply demonstrate that the Ninth Circuit continues to cope
admirably with its rising caseload without jeopardizing the
quality of justice, and that its overall performance is on par
with that of other judicial circuits.''
I actually believe this is fact and truth. However, I am
not sure it is the whole story. I do think that circuits can
become so overburdened, so impersonal, so harassed that they
can't keep up with the law, and that the collegiality on which
many of the circuits seem to base some of their decisionmaking
gets lost.
So I would be hopeful that our witnesses today would
address some of these questions, and I would ask unanimous
consent to place this letter from the bar association in the
record, if I might.
Chairman Sessions. Without objection, it will be made a
part of the record.
Senator Feinstein. That completes my statement. Thank you.
Chairman Sessions. I will be glad to hear briefly from our
other two Senators, Senator Kyl and Senator Larry Craig.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman. I know that we are
all anxious to get to the panel, and I know Senator Murkowski
is anxious to testify as well. I want to make a couple of
preliminary comments, though, if I could.
This hearing kind of snuck on me and as a result I have
another meeting that I have got to go to at 10:30, but I will
return and will review very carefully the written comments that
I miss in any event.
I want to thank you, Mr. Chairman, for holding the hearing.
The reasons for it were well laid out by both you and Senator
Feinstein. I also want to note I think we have incredible
panels here. It is hard to imagine more judicial firepower,
given the fact that the Supreme Court is unlikely to come visit
us at this site. So I want to acknowledge that.
If I could take the personal privilege of introducing Chief
Judge Schroeder, since I will not be here when she begins her
testimony, and thank her for making herself available. She did
have to change her schedule, as Senator Feinstein said.
She received her law degree from the University of Chicago
Law School, and after serving as a trial attorney in the U.S.
Justice Department's Civil Division, spent several years in
private practice in Phoenix, Arizona. She was appointed to the
court of appeals in Arizona in 1975, and in 1979 was elevated
by President Carter to the U.S. Court of Appeals for the Ninth
Circuit. She has served as chief judge of the circuit since the
year 2000. She brings a unique and valuable perspective to the
topic of this hearing.
Mr. Chairman, the subject, whether to divide the Ninth
Circuit, is one that I have been involved in for many years.
Prior to coming to Congress, I spent nearly two decades in
private practice in Phoenix, and in that capacity represented
clients before every level of both the State and Federal
courts, including much litigation before the Court of Appeals
for the Ninth Circuit.
As a Senator from Arizona, I have supported and submitted
written comments to the White Commission on structural
alternatives for the Federal courts of appeals that was issued
in 1998. Commenting on the commission's draft report, I urged
commissioners to consider and evaluate multiple proposals for
reconfiguring the Ninth Circuit.
Among the proposals that I suggested to the commission were
making California into a separate division of the Ninth
Circuit, or into a separate circuit; creating four divisions,
with central California alone as its own division, in order to
more evenly distribute caseload; even adding Arizona to the
Tenth Circuit.
Mr. Chairman, I am very open-minded about this subject, as
you can see, and I agree with Senator Feinstein that all of us
need to be open-minded and constructive to our approach to
this.
Each of the various ideas presents its own issues for
consideration, but ultimately the path that Congress chooses to
follow will depend upon which criteria we deem to be most
important in configuring a circuit. Is top priority to be given
to evenly balanced caseload, to preserve geographic contiguity,
to avoid subdividing a State, to maintain compactness? And
there are other issues, as well.
As this process moves forward, I hope that all of us can
keep in mind one criterion above others, and that is to ask how
do any of the proposed configurations, including the status
quo, affect litigants who have matters before the court? How
does it affect their ability to gain access to a stable and
reliable body of law by which they can arrange their affairs?
And when disputes arise, how does the circuit's structure
affect their ability to have a case decided quickly and
efficiently and correctly?
I think by devoting our good-faith energies to this matter
and deciding which criteria are most important, while always
holding the interests of the court's customers above all
others, we should be able to come to an agreement on how the
U.S. Court of Appeals for the Ninth Circuit should be
configured in the future.
Again, I commend you for addressing this subject and for
all of our witnesses for taking the time to be here and help
inform us on the subject.
Thank you.
Chairman Sessions. Thank you, Senator Kyl. I know that you
have taken a real interest in this as a full-time practicing
lawyer who has, I am sure, argued before the Ninth Circuit. I
know you have had several cases you have argued before the U.S.
Supreme Court, so you are one of our premier lawyers in the
Senate.
Senator Craig.
STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF
IDAHO
Senator Craig. Mr. Chairman, thank you very much, and let
me reflect, as all have, our appreciation for having these most
prestigious panels before us this morning to consider with us
what we believe in the West to be a very necessary and
important issue.
I also want to thank the Chairman and the Ranking Member
for their objective approach to this issue. There are a lot of
reasons to look at the Ninth Circuit, and many of them have
been expressed and I will hold to those objective reasons. We
have two bills introduced here in the Senate. We have a bill
introduced in the House. Senator Murkowski is before us. She
has faced this issue and has introduced legislation that I am
supportive of.
I am here also to say I don't know of the magic of the
design or the geography, but I do believe, based on all the
statistical work I have read and the opinions that I am
hearing--and I have had the opportunity to read some of your
testimony already--that a day is rapidly coming when this
Senate, this Congress, has to face the issue and resolve what I
think Senator Feinstein has appropriately asked this morning.
I am one of the few non-lawyers on the Judiciary Committee,
so I will make only one political statement and then I will
retain the balance of the time to listen. If I want to be
assured of one applause line that is the loudest I can get in
any single bipartisan audience in the State of Idaho, it is to
suggest that I am openly and aggressively supportive of
redesigning and reshaping the Ninth Circuit.
For any who would argue that this is too expensive to do,
most Idahoans would suggest that failure to do it is too
expensive for my State to put up with. That is the feeling in
Idaho and that is the feeling in many Western States today. So
it is incumbent upon this Congress to look at it in an
objective way and to try to determine if it is necessary and
appropriate to do.
I have concluded that it is; others have already concluded
it. But I will also tell you I don't know quite how effectively
to do it in a right and responsible manner that gets the
citizens of our country the best legal actions and activities
through the courts they can have.
Thank you, Mr. Chairman.
Chairman Sessions. Thank you, Senator Craig.
We will hear from two panels of witnesses today. On the
first, we will discuss whether a division of the Ninth Circuit
is warranted. We will also address the merits of the various
proposals to effect such a division, including Senator Ensign's
bill, who is not here today but who has offered legislation,
and Senator Murkowski, who is here today.
The witnesses on the first panel will include Judge
Diarmuid O'Scannlain, appointed to the Ninth Circuit in 1986;
Judge Mary Schroeder, appointed to the Ninth Circuit in 1979;
Judge Richard Tallman, appointed in 2000; and Judge Clifford
Wallace, appointed in 1972.
On the second panel, we will focus on the administrative
aspects of a division, with respect to the most recent
restructuring of a Federal circuit. In 1981, Florida, Georgia
and my home State of Alabama were carved out of the Fifth
Circuit to become the Eleventh Circuit.
Judge Tjoflat, I was sort of surprised. I thought you were
too young to have been on the old Fifth Circuit and been a part
of that split. I don't know why I didn't remember that. I
remember being at the opening ceremonies in Atlanta when Judge
Godbold formed the new Eleventh Circuit.
This reorganization was initiated in large part because of
the size of that circuit and has proven to be a tremendous
success in terms of administration. Two witnesses will share
their wisdom. The first will be Judge Gerald Bard Tjoflat,
appointed to what was then the Fifth Circuit by President Ford
in 1975, and has served on the Eleventh Circuit since 1981. The
second witness will be Judge John Coughenour, appointed to the
Western District of Washington by President Reagan in 1981.
I mentioned Judge Schroeder, did I not?
Judge Schroeder, we are delighted to have you. You are
Chief Judge of the circuit and you were appointed to the
circuit in 1979.
Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI, A U.S. SENATOR FROM THE STATE
OF ALASKA
Senator Murkowski. Thank you. Good morning, Mr. Chairman,
Senator Feinstein, members of the Subcommittee. I thank you for
holding a hearing on this very important matter of the United
States Court of Appeals for the Ninth Circuit.
The Ninth Circuit has a direct and dramatic impact on my
State.
And, Senator Craig, your comment about the sentiment of
Idahoans on this issue--I can assure you that in Alaska it also
is extremely important and one of those issues that generates
huge response, as you have indicated.
For 20 years, we have examined the need to make changes and
actively considered how the Ninth Circuit should be
restructured. The court's administration, the physical size of
the circuit, the length of time that the court takes to resolve
cases and the huge and diverse caseload for judges create
considerable problems in dispensing justice.
Last year, in response to these problems, I introduced S.
562, the Ninth Circuit Court of Appeals Reorganization Act of
2003. I was joined by Senators Stevens, Burns, Craig, Crapo,
Inhofe and Smith. S. 562 would split the Ninth Circuit by
leaving Nevada and California in the Ninth Circuit and create
the Twelfth Circuit, containing Alaska, Arizona, Hawaii, Idaho,
Montana, Oregon, Washington, along with the territories of Guam
and the Northern Mariana Islands.
The bill provides that the present Ninth Circuit would
cease to exist for administrative purposes on July 1, 2005. To
allow the prudent administration of the court system, the Ninth
Circuit and the newly-created Twelfth Circuit could meet in
each other's jurisdiction for 10 years after the enactment of
the bill.
The bill also provides that judges in the Ninth Circuit may
elect in which circuit they wish to practice. Each circuit
judge who is in regular, active service and each judge who is a
senior judge of the former Ninth Circuit on the day before the
effective date of the Act may elect to be assigned to the new
Ninth Circuit or to the Twelfth Circuit, and shall notify the
director of the Administrative Office of the United States
Courts of such election.
Let's talk a little bit about the numbers. As the
Subcommittee members have indicated, some of the problems of
the circuit can be traced to issues related to its geographic
size, the caseload, the lack of geographic diversity in its
sitting judges and many other issues unique to the Ninth
Circuit.
In 2003, the Ninth Circuit had 11,277 cases pending before
it--a 17-percent increase over the previous year of 9,625
cases. In comparison, in 2003, the Second Circuit had the next
highest caseload, with 6,767 cases pending, or over 4,500 fewer
cases than the Ninth. Next in line is the Fifth Circuit, with
4,444 cases in 2003.
The Ninth Circuit takes an average of 5.8 months between
the notice of appeal and the filing of the last brief. But from
notice of appeal to final disposition, it averages 14 months.
Now, in comparison, the Fifth Circuit averages 5.6 months
between the notice of appeal to the filing of the last brief.
But from the filing of the notice of appeal to a final
decision, in the Fifth Circuit the average time is 9.4 months--
nearly 5 months faster. So it takes 5 months longer in the
Ninth Circuit, with close to 7,000 more cases pending. With
such a large caseload and the length of time involved, the
reality is that the Ninth Circuit will only fall farther and
farther behind the other circuits.
Part of the problem with the Ninth Circuit is its sheer
size. The three-judge panels cannot circulate opinions to all
of their colleagues for corrections or review. This breeds
conflict of decision between three-judge panels all within the
same circuit. There are 27 judges. There is no telling how some
issues will be decided. In the Ninth Circuit, the court cannot
really sit en banc. Instead, 11 judges are picked to review a
decision of a 3-judge panel. And once again the process ensures
that a decision of the whole court is, in reality, the luck of
the draw sometimes.
I am committed to the belief that the people and
institutions that comprise the Ninth Circuit support splitting
the circuit and creating a new circuit. On March 21, 2003, Greg
Mitchell, in the Recorder, wrote that the Ninth Circuit Court
should be split not as a means to punish it for bad decisions,
but that it, quote, ``should be split for the ho-hum reason
that it is just too big to operate as intended and needs to
become bigger still to carry what has become the heaviest
caseload in the country.''
According to Mitchell, the Judicial Conference said it
would seek 11 new circuit judges from Congress, with 7 to be
for the Ninth Circuit. If that happens, there would be over 35
active judges in that circuit, with another 20 on senior
status.
An editorial in the Oregonian newspaper dated July 25,
2002, encourages the splitting of the Ninth Circuit not because
of the court's decisions, but because, quote, ``The hard facts
make the case.'' The paper pointed out that the Ninth Circuit
comprises nine States and two territories which contain a
population of over 56 million people. The next largest-
populated circuit is the Sixth Circuit, with a population of 32
million. The Ninth Circuit has twice the population of the
average appeals court.
The Oregonian cited Judge O'Scannlain, who sits on the
Ninth Circuit and who is with us this morning, and he said his
support of the split, quote, ``is solely based on judicial
administration grounds, not premised on reaction to unpopular
decisions or Supreme Court batting averages.'' I do look
forward to hearing his comments this morning.
Seven years ago, the U.S. Congress was considering
legislation to split the Ninth Circuit. The split did not occur
then, but the legislative effort resulted in a commission being
convened to consider and make recommendations on the issue. The
White Commission, in the 1990's, did not recommend the split,
but suggested administrative changes that subsequently seem
unworkable and do not address the problems we have today.
So here we are this morning considering my legislation, S.
562, as well as S. 2278. I am pleased to see that Senator
Ensign and Senator Craig have put forward another proposal to
address the problem. Senator Ensign's bill would create two new
circuits. One circuit would keep California, Hawaii and the two
territories in the Ninth Circuit. The new Twelfth would include
Arizona, Nevada, Montana and Idaho. The State of Alaska would
join the States or Oregon and Washington to create the
Thirteenth Circuit. This proposal is intriguing and I am
anxious to hear more about it. The several administrative
changes that are suggested in Senators Ensign and Craig's bill
are also attractive.
Quite honestly, Mr. Chairman, I am just pleased to see some
progress and further discussion on any of these proposals. I
thank Senator Ensign for his leadership on this.
Mr. Chairman, I thank you for holding the hearing this
morning and I am looking forward to the presentations from the
various judges.
Thank you.
Chairman Sessions. Thank you, Senator Murkowski. Your
leadership in moving this issue forward has been helpful. I
know you are a lawyer and a member of the Ninth Circuit bar and
care about it deeply and want to see the court reach its
highest potential.
I think it is interesting to have the different ideas, as
Senator Kyl said, that have been floating about. So I guess
your position is somewhat like Senator Kyl's. You are open to
discussion, but you have presented a proposal that you believe
would work.
Senator Murkowski. Absolutely. I think what is happening
now with the various proposals that are out on the table and
the discussions and a review of what we can do to better
provide for justice within the Western States is what we are
all looking for.
Chairman Sessions. Very good. Well, we thank you for that
presentation.
Senator Murkowski. Thank you.
Chairman Sessions. We would be delighted to have you stay
with us, but if you have other things to do, you are free to go
as you choose.
Senator Murkowski. Thank you.
Chairman Sessions. All right. We will take our first panel
now--Judge O'Scannlain, Chief Judge Schroeder, Judge Tallman
and Judge Wallace.
If you would each stand and raise your right hand--okay, we
won't swear you in this morning. You are officers of the court.
You can pretend this is a court, but trust me, it is not. This
is a political branch.
Chief Judge Schroeder, we would be delighted to hear from
you and your observations on this subject, and we will just go
down our list.
STATEMENT OF HON. MARY M. SCHROEDER, CHIEF JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PHOENIX, ARIZONA
Judge Schroeder. Thank you very much, Mr. Chairman. I very
much appreciate being here. My name is Mary M. Schroeder. I am
the Chief Judge of the United States Court of Appeals for the
Ninth Circuit, appointed to the court in 1979 by President
Carter. I am the Chief Executive Officer of both the Court of
Appeals and the Ninth Circuit Judicial Council, which governs
the court of appeals, the district courts and the bankruptcy
courts. My home chambers are in Phoenix, Arizona, and I welcome
the opportunity to appear before you even on short notice.
Chairman Sessions. Thank you for that.
Judge Schroeder. I want to thank Senator Kyl for the
comments that he made earlier, and I do look forward to the
testimony of all of the witnesses.
Appearing with me today in opposition to the proposals to
divide the circuit are two other judges with administrative
experience in our circuit. The first is Senior Judge J.
Clifford Wallace, of San Diego, who served as Chief Judge
before I did, and he has a great deal of experience
internationally in traveling around the world working with
judges in other countries and showing them how our system of
Government works and sharing our belief in the rule of law.
Also here testifying on the next panel is Chief District
Judge Jack Coughenour. He is the Chief District Judge for the
Western District of Washington. Judge Coughenour has been
involved in administrative matters with our circuit for many
years, as well. He is currently the Chair of our Conference of
Chief District Judges.
Also present with us is our wonderful, superb clerk of
court, Cathy Catterson, who formerly worked here in Washington
for Senator Javits for many years, and also worked with the
Deavitt Commission before coming to our court.
I believe it is very important at the outset that all of us
understand at least three important points. The first does go
to cost. When we discuss any of the proposals before you--and
most of the discussion so far this morning has been concerning
the court of appeals, but when we talk about splitting up the
judges of the existing court of appeals, we are not just
talking about the court of appeals. We are actually talking
about dividing the entire and well-integrated administrative
structure of the Ninth Circuit in order to create two, or even
three, separate and largely duplicative administrative
structures.
This is costly and, I submit, wasteful. This is especially
true when we face a budget crisis requiring us to lay off
employees performing critical functions; for example,
supervision of probationers and preparation of sentencing
reports. So we are talking about district courts, bankruptcy
courts, as well as the court of appeals.
The second point goes to geography. The Ninth Circuit
includes California. Although there are nine States in the
Ninth Circuit, more than two-thirds of the workload of the
court of appeals is from California. There is no way to divide
the circuit into multiple circuits of roughly proportionate
size without dividing California. None of the proposals before
you would do that. So, like Goldilocks, we find that one is too
big and another too small. The proposals to divide the
circuit--I am very pleased that they do now--several contain
proposals to add additional judges for California. But under
all, there would still be more than 20 judges in any circuit
containing California.
The third point that I wish to make goes to history. Over
the course of the extremely colorful history of the West,
certain ties have developed that should be respected in circuit
alignment in order to provide for continuity and stability.
Arizona, for example, may at one time have seen itself as a
Rocky Mountain State. But the truth today is its economic and
cultural ties are overwhelmingly closer to California than to
Colorado or Wyoming. Another example is California and Nevada.
Their bond is so great that they have joined in a compact to
protect Lake Tahoe. Idaho and eastern Washington have
essentially treated their district judges as interchangeable
for years.
So the division proposed in S. 2278 into three circuits
would sever all those ties by dividing Arizona from California,
California from Nevada, and Idaho from Washington. A unified
circuit keeps those ties intact.
As Chief, I am very proud of the manner in which we have
been able to administer a rapidly growing caseload with
innovative procedures possible only in a court with large
judicial resources. Some examples: Our system of identifying
issues and grouping cases is unique among the circuits and
allows for efficient resolution of hundreds of cases at a time
once the central issue is decided by a panel.
The staff attorney's office, and in particular our Pro Se
Unit--and the largest growth in cases for some time was in pro
se cases; it is now the immigration cases which make up that
increase that has been referred to in the past year. But our
Pro Se Unit efficiently processes approximately one-third of
our cases each year, and these are cases in which
jurisdictional problems dictate the result or in which the
decision is compelled by existing case law.
Our bankruptcy appellate panel has successfully resolved a
large number of bankruptcy appeals which would otherwise be
decided by circuit judges. Our mediation program, also unique
in its breadth, resolves more than 800 appellate cases a year,
and we are the leader in appellate mediation among the Federal
circuits. Our mediators travel all over the country training
others to follow in our stead.
Technology has dramatically changed court operations over
the last few decades. Senator Feinstein referred to this and it
is extremely important. Particularly, these changes have taken
place since the time when the Fifth Circuit split almost 25
years ago. We now have automated case management and issue
tracking systems, computer-aided legal research, electronic
mail, video conferencing. These have all permitted the court to
function as if the judges were in the same building.
Most important, the existence of a large circuit, with all
circuit, district and bankruptcy judges bound by the same
circuit law, gives us the flexibility to deal with the large
concentrations of population and enormous empty spaces of the
West. A large circuit has served our citizens well by allowing
us to move judges from one part of the circuit to another,
depending on where the needs are, as recently, for example, in
the border districts of California and Arizona and in the
widely scattered population centers of Idaho.
I recognize that the latest proposal contains a number of
provisions intended to ameliorate the harm that would result
from division. It would add circuit judgeships for California
and it would postpone actual division until after that most
uncertain point in time when the new judges are confirmed, but
this makes long-range planning very difficult.
This proposal also envisions judges from the new Twelfth
and the Thirteenth Circuit sitting with the Ninth Circuit on
request. This would restore a bit of the lost flexibility, but
not much. Judges would have to keep track of the law of
multiple circuits to make it work. Most important, chief
circuit judges are not anxious to see their active judges doing
the work of other courts and not their own.
The commission chaired by former Justice Byron White
studied the issues a few years ago. It recommended against
dividing the circuit, it praised its administration and it
cautioned against restructuring courts on the basis of
particular decisions by particular judges. Judicial
independence is a constitutional protection for all our
citizens.
Circuit restructuring is, in fact, rare. It has happened
only twice. The last was nearly a quarter of a century ago,
when the Fifth Circuit divided into the Fifth and the Eleventh,
upon the unanimous vote of the active circuit judges. Division
should take place only after there is demonstrated proof that a
circuit is not operating effectively and when there is
consensus among the bench, the bar and the public it serves
that division is the appropriate remedy. That burden has not
been met here.
The latest proposal was introduced 5 days ago. It took me a
day to travel here, so I have had only limited time to prepare
and to study it. If you have any questions that I am unable to
answer or if you would like a written follow-up on any matter
that arises during this hearing, I would be happy to provide. I
would also invite any of you to visit our headquarters in San
Francisco to see how we function.
I am pleased to be here with my colleague, Diarmuid
O'Scannlain, with whom I have appeared before, and with my
colleague, Richard Tallman, whose views appear to reflect those
of our mutual mentor and very esteemed colleague, the late,
great Eugene Wright, of Seattle. Judge Wallace and I never got
him to see the light either.
We have had discussions within our court about this subject
from time to time for several decades, but the great majority
of our judges have consistently opposed division. We have 48
judges and I believe the latest list was 9 active and senior
judges--9 of approximately 48 have supported division. The
remainder do not. I am advised that the chief bankruptcy judge
has opposed division as well.
We are scheduled to discuss this subject at our next court
retreat in about ten days. The Chair of our Conference of Chief
District Judges, Judge Coughenour, of Seattle, is here and he
will share his trial court perspective with you.
To comment, if I may just briefly, on our en banc process,
to respond to the Senator's question, our limited en banc
process has been in place for about 25 years, since I came on
board. We believe it has worked quite successfully. It has a
failsafe device. If any judge is unhappy with the decision of
11 judges, a judge may call for a vote of all of the judges,
and our rules provide that we will sit as an en banc court,
with every member of the court sitting.
We have had, I think, two or three calls for a vote to sit
en banc. I believe they were in death penalty cases. The court
has never voted to sit its 28 judges. We believe this is
testimony that the system has worked quite well. And, as noted,
we have increased the number of en banc sittings in recent
years.
The American Bar Association and the Federal Bar
Association have both weighed in against a split. I also want
to clarify that the increase in our caseload recently--there
was reference to 12,000. That is the total number of cases. The
increase has been approximately 3,000 and it is due to an
immigration case surge due to the increasing number of cases
decided by the Board of Immigration Appeals. The circuit
receives about 50 percent of the appeals nationwide in
immigration cases. Most of those are in California as well.
So I thank you very much for the privilege of appearing
before you and I will answer any questions that you have.
[The prepared statement of Judge Schroeder appears as a
submission for the record.]
Chairman Sessions. Thank you, Chief Judge Schroeder. We
appreciate those comments and your insight.
Judge O'Scannlain.
STATEMENT OF HON. DIARMUID F. O'SCANNLAIN, JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON
Judge O'Scannlain. Thank you, Mr. Chairman. Good morning,
Mr. Chairman and members of the Subcommittee. My name is
Diarmuid F. O'Scannlain, Judge of the United States Court of
Appeals for the Ninth Circuit, with chambers in Portland,
Oregon.
I am especially honored to be called upon, along with my
colleague, Judge Tallman, and my colleague from the Eleventh
Circuit, Judge Tjoflat, to support restructuring the largest
judicial circuit in the country. The urgency is manifest in the
number of Ninth Circuit reorganization bills which are pending
in this session of Congress. Last year, Senator Murkowski
introduced S. 562, and Congressman Simpson of Idaho introduced
H.R. 2723 in the House, which incidentally has already had a
hearing in the House Judiciary Committee. Just last week,
Senator Ensign introduced S. 2278. Each of these proposals
offers distinct, but elegant solutions to the problem of our
over-large and overburdened circuit.
Mr. Chairman, I speak not only on my own behalf, but on
behalf of many circuit and district judges. Eight of my
colleagues publicly support the restructuring of the Ninth
Circuit--Judges Sneed of California, Beezer of Washington, Hall
of California, Trott of Idaho, Fernandez of California, T.G.
Nelson of Idaho, Kleinfeld of Alaska, and my colleague here,
Judge Tallman of Washington.
You may recall that my colleague, Judge Rymer, from
California served on the White Commission and is on record that
our court of appeals is too large to function effectively. I
can also report that the judges of the District of Oregon have
recently voted 10 to 4 in favor of a split in a survey which
was requested by the Oregon Chapter of the Federal Bar
Association.
I appear before you as a judge of one of the most
scrutinized institutions in the country. In many contexts, that
attention is negative, resulting in criticism and controversy.
Some view these episodes as fortunate events, sparking renewed
interest in how the Ninth Circuit conducts its business.
Yet, I believe that all of us testifying today would agree,
supporters and opponents alike, that any restructuring proposal
should be analyzed solely on the grounds of effective judicial
administration, grounds that remain unaffected by the Supreme
Court batting averages or public perception of any given
decision.
Mr. Chairman, I won't repeat the detail of my written
testimony, but I do want to emphasize a few points. Put very
simply, the Ninth Circuit is now so large that the only
reasonable solution is to reorganize it. We are the largest in
every category--9 States; 13,000 annual case filings; 47
judges, soon to be 50; 40 percent of the geographic area of the
country and 57 million people.
Indeed, your comments, Mr. Chairman, and those of Senators
Feinstein, Kyl, Craig and Murkowski suggest that there may be a
developing consensus that the size of the court bears very
close scrutiny. Our increasingly gargantuan size relative to
other circuits irrefutably demonstrates the necessity of a
reorganization. No matter what metric one uses, the Ninth
Circuit dwarfs all others.
If you would kindly turn with me to the appendix to my
written testimony, specifically to Exhibit 7 on page 33, you
will see the comparison of the total number of judges on the
Ninth Circuit with the average number of judges on all of the
other circuits. This chart dramatically illustrates that the
Ninth Circuit has two-and-a-half times as many judges as the
average of all other circuits.
Turning to the next page, Exhibit 8, page 34, you will see
that Ninth Circuit law governs the lives of almost three times
more human beings than the other circuits, on average, do. This
is a truly extraordinary imbalance of judicial power. An
opinion issued by the average circuit judge in this country
establishes Federal law for about 20 million people, but the
same opinion, if issued by a Ninth Circuit judge, adjudicates
the Federal rights and obligations for close to 60 million
citizens. That is a stunning discrepancy.
Turning to Exhibit 9 on page 35, you will see that the
Ninth Circuit now houses nearly as many people as the Fifth and
the Eleventh Circuits combined. These two circuits were formed
by splitting a single circuit, the old Fifth Circuit, back in
1981 in a relatively straightforward process that went largely
unchallenged. So I am mystified by the relentless refusal by
past and present Ninth Circuit chief judges to entertain any
reorganization at all.
Exhibit 10 on page 36 demonstrates the serious caseload gap
between the Ninth Circuit and the average of all of the
circuits. In overall appeals filed last court year--perhaps the
most important metric of judicial administration--the Ninth
Circuit dwarfed the other circuits by an almost three-to-one
margin. And this will only get worse. As the Administrative
Office has reported for several years now, the number of
appeals in the Ninth Circuit keeps climbing at an ever-
increasing rate.
Although we have elevated our productivity through various
triage efforts, we have not been able to increase the
resolution of our appeals at the same remarkable pace set by
new filings. The Ninth Circuit Court of Appeals has not yet
collapsed, but it is certainly poised at the edge of a
precipice, and only a restructuring can bring us back.
Split opponents have long attempted to place the burden on
Congress to demonstrate that a reorganization is absolutely
necessary. There may have been some force to that argument in
the past when the Ninth Circuit was the largest of our regional
circuits, but by a relatively small margin.
Of course, complete parity is impossible and, by
consequence, there will always be a largest and there will
always be a smallest circuit. But, Mr. Chairman, I submit to
you now that the tide has turned and the burden plainly has
shifted, indeed the whole paradigm has shifted. As long as one
accepts the underlying premise of appellate circuits in the
first place that discrete decisionmaking units provide absolute
benefits to the administration of justice, there is no denying
that the Ninth Circuit must be reorganized.
I challenge any opponent of reorganization to articulate a
reasonable justification for placing one-fifth of our citizens,
one-fifth of the entire Federal appellate judiciary and one-
fifth of all of the appeals filed by all of the Federal
litigants in this country in just one of twelve regional
subdivisions.
The Ninth Circuit's size has so far exceeded the other
circuits in all relevant respects that it is difficult even to
argue that it is part of the same appellate system. Indeed,
opponents generally make precisely such an argument. They have
to because there is no other justification for such a large
deviation from the norm.
But then maybe the Ninth Circuit is something special.
Maybe, as reorganization critics appear to believe, we are the
exception to every other circuit, and maybe we are some
untouchable empire immune from scrutiny that should be allowed
to swell to three times the size of all other circuits without
consequence.
But if that is the case, then it is time for the critics of
restructuring to defend that position. Clearly, it has become
the job of those who oppose reconfiguration to demonstrate why
such a wildly uneven distribution should stand, for there can
be no dispute about what the numbers alone prove. The question
that must now be answered is whether there is any compelling
evidence to avoid a split.
There was at least one argument along these lines that
warrants a specific response. In her most recent state of the
circuit speech, our chief judge made the astonishing assertion
that, and I quote, ``Split proposals must realistically be
viewed as a threat to judicial independence,'' end quote. I
submit that this is directly contrary to over a century of
Congressional attention to circuit structure, all of which is
concededly within the legislature's purview, and it simply
cannot be true.
Bills such as S. 562, H.R. 2723 and S. 2278, with many
provisions directly responding to the concerns the chief judge
and other critics have previously articulated, deserve
considered commendation, not presumptive condemnation. They
demonstrate the good-faith efforts made by the House and the
Senate reasonably to restructure the judicial goliath of our
court.
Calling for a circuit split based on a particular decision
is counterproductive and unacceptable. But may I suggest so is
attacking the integrity of our elected representatives when
confronted with honest and fair proposals to divide our
circuit.
Unfortunately, the Ninth Circuit's problems will not go
away. Rather, they will only get worse. The case for a split
has become self-evident. We have moved beyond the time for
quibbles over presumptions and motivations. This issue has
already spawned, both within and outside the court, too much
debate, discussion, reporting, testifying, and for far too
long. We judges need to get back to judging.
I ask that you mandate some sort of restructuring now. One
way or another, the issue must be put to rest so that we can
concentrate on our sworn duties and end the distractions caused
by this never-ending controversy. I urge you to give serious
consideration to any reasonable restructuring proposal that
might come before you.
Mr. Chairman, I thank you for allowing me to appear before
you today and I will be very happy to answer any questions that
you may have.
[The prepared statement of Judge O'Scannlain appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge O'Scannlain, and your
complete remarks and the remarks of all of you will be put in
the record. We appreciate the tale you gave us in your written
statement.
Judge Tallman.
STATEMENT OF HON. RICHARD C. TALLMAN, JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, SEATTLE, WASHINGTON
Judge Tallman. Good morning, Mr. Chairman, members of the
Subcommittee and Senator Murkowski. My name is Richard C.
Tallman and I am a circuit judge on the Ninth Circuit, with
chambers in Seattle, Washington. I was appointed by President
William J. Clinton in May of 2000. I thank you for the
invitation to appear here today to discuss the reorganization
of our court.
I again join my colleague, Judge Diarmuid O'Scannlain, and
the other circuit and district judges throughout our circuit
who publicly favor splitting our court to better serve the
citizens of the West. Like so many of the contentious cases we
decide, this topic also divides my colleagues. But I must
respectfully disagree with the other point of view espoused by
my distinguished chief judge, Judge Wallace and Chief Judge
Coughenour. Size does affect the quality and efficiency of
administering justice. Inevitable and continuing growth will
not permit us to ignore this conundrum indefinitely.
I agree with the opening comments of the Senators this
morning and with Judge O'Scannlain that the key consideration
is identifying the best structure to permit our judges to serve
the public. The public has the right to prompt, quality
decisionmaking. Justice delayed is justice denied. The quality
of our decisionmaking process is impacted by a variety of
factors. I would like to touch upon a few in my oral remarks.
I am acutely aware of how the sheer size of our court
impedes the critical development of strong personal working
relationships with my fellow judges. The genius of the
appellate process is the close collaboration of independent
jurists who combine their judgment, experiences and collective
wisdom to decide the issues presented in an appeal.
I came on the bench nearly 4 years ago, in June of 2000.
Yet, to this day, I have not sat on a regular three-judge oral
argument panel with all of my other active and senior
colleagues. I am not alone. Professor Hellman, a noted expert
on our court, testified in October 2003 about H.R. 2723,
introduced by Congressman Mike Simpson of Idaho. Professor
Hellman's research confirmed that even today the judges of my
court sit with one another infrequently. He cited the example
of Judge William Fletcher, who joined the court in February
1999 and who, four-and-a-half years later, had still not sat
with all of the active judges appointed through 2000.
The White Commission observed 6 years ago that only by
sitting together regularly can members of a court come to know
one another and work most effectively together. The sheer
volume of the nearly 13,000 appeals filed annually would be
difficult for our active and senior judges to handle under the
best of circumstances.
The problem is exacerbated by the enormous geographical
size of our circuit; as some in Idaho and Montana describe it,
``windshield time''. The problem means that we have to travel
long distances and spend substantial time away from our
chambers in transit. Professor Hellman testified that judges
need a working environment that is conducive to the thoughtful
and efficient processing of their cases. Travel detracts from
the creation of that environment.
For example, there are only some kinds of work that I can
do in the many hours I spend in airports and on airplanes. To
protect the confidentiality of the decisionmaking process, I
cannot work on opinions not yet publicly filed, or read sealed
materials or memoranda from other judges relating to such
matters. I would gladly give up my premier frequent-flyer
status for more time in chambers.
Turning to the aspect of our work that is most important to
maintaining consistency in our decisions, I would like to tell
you why our current system of limited en banc proceedings is
not working fairly.
The Ninth Circuit is the only circuit in the country where
all active circuit judges do not participate in rendering the
most important decisions. Size prevents us from functioning as
a democratic institution with majority rule--the rule in every
other circuit court and in the United States Supreme Court.
Only our chief judge is assured a seat on every en banc panel.
The remaining 10, out of 26 active judges, are randomly drawn
by lot using a jury wheel. The randomness of this selection
process frequently results in en banc panels that do not
contain any of the judges who originally sat on the three-judge
panel.
This occurred in the California recall election case and
two recent death penalty cases cited in my written testimony.
The recall case, in particular, has been touted as a shining
example of how quickly and efficiently our en banc process can
work. But the en banc panels deliberated and voted to reverse
the initial decisions in all three cases without the
participation and benefit of the in-depth knowledge of the
factual and procedural history of each case possessed by the
three judges who initially heard them.
Most strikingly, a mere 6 judges on a limited en banc panel
can set the law of the circuit for the other 20 judges, whether
the resulting decision reflects the full majority's views or
not. It is indisputable that some close cases with six-to-five
or seven-to-four split votes would have been decided
differently had different eligible judges been drawn for the en
banc panels. I have provided specific examples in my written
materials.
It also is theoretically possible that an 11-judge panel
could contain none of the minimum of 14 judges who voted to
accept the case for en banc review in the first place. A
court's en banc process should be inclusive, encouraging
participation by all judges. After all, these are by definition
cases of great significance or those involving extraordinary
legal error.
Yet, our limited en banc system discourages judges from
making en banc calls, which again plays a key role in
developing and maintaining our jurisprudence. Making an en banc
call or opposing one is a tremendously time-consuming endeavor.
Unseen by the public is the written advocacy of the judges
supporting the call, who essentially write legal briefs in
support of the reasons why the case should be reviewed en banc.
The panel that issued the decision normally opposes the call
and writes a brief urging that the decision stand.
All judges, active and senior, are free to join in the
exchange of these internal memoranda, which can become quite
voluminous. One reason that judges may not choose to
participate in this process is because they will not know
whether they have been randomly assigned to the 11-judge panel
until after a majority of the active judges has voted in favor
of en banc review. As the court grows bigger, a judge's chances
of being drawn for an en banc panel decrease.
Due to the extremely large caseload in the circuit, too
many cases are decided annually to permit effective review of
each by an en banc panel. En banc proceedings occur only in a
small percentage of our cases. For example, in 2003, out of 972
petitions for rehearing en banc filed by the parties, judges
called for en banc votes in only 40 cases. Of those 40, only 13
were eventually reheard en banc. The Supreme Court lacks the
capacity to correct the inevitable mistakes through its
certiorari process that slip past our inadequate Ninth Circuit
limited en banc process.
Whatever you decide about whether to split the Ninth
Circuit, I am pleased to see that the various bills recognize
that California needs more judges. I would certainly be willing
to visit wherever needed during the transition period while new
judges are nominated and are under consideration by you for
appointment.
In terms of where a new circuit headquarters might be
located, Seattle is home to the ten-story William K. Nakamura
United States Courthouse, which the judges of the Western
District of Washington will soon vacate when they move to a new
facility. The Nakamura Courthouse has more than 100,000 square
feet of usable space. It is certainly large enough to serve as
a circuit headquarters and could be reconfigured for that
purpose without excessive additional work or financial
expenditure.
We are well past the point of asking whether the Ninth
Circuit should be split. Instead, we ought to be asking how it
should be accomplished. I appreciate the fact that Congress has
been considering various proposals for what the split might
look like. I recognize that the ultimate configuration of such
a split is a decision best left to the considered judgment of
the legislative branch. Whatever you decide, a smaller court
would speed dispositions of appeals, improve our collegiality,
and enhance predictability, which I learned from practicing law
is crucial to maintaining the respect for the rule of law among
the people we serve.
I thank the Subcommittee for the opportunity to testify and
I look forward to your questions.
[The prepared statement of Judge Tallman appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge Tallman.
Senator Feinstein, I believe you have a guest. Would you
introduce her?
Senator Feinstein. Thank you very much, Mr. Chairman.
Indeed, I do. I am privileged to have my granddaughter here.
She is 11 years old. She lives in San Francisco. He mother, my
daughter, is a judge, and so she is reviewing this process.
Chairman Sessions. Very good.
Senator Feinstein. I am pleased to have her meet the panel.
Chairman Sessions. We are delighted to have you. We just
couldn't be happier, and I hope you will give Senator Feinstein
your best advice on how this matter should be settled.
Judge Wallace.
STATEMENT OF HON. J. CLIFFORD WALLACE, SENIOR JUDGE, U.S. COURT
OF APPEALS FOR THE NINTH CIRCUIT, SAN DIEGO, CALIFORNIA
Judge Wallace. Thank you, Mr. Chairman. My name is Clifford
Wallace. I have been a judge on the United States Court of
Appeals since 1972. I think that makes me senior. Prior to
that, I was a district court judge, and before that I practiced
as a trial lawyer in San Diego for 15 years handling major
civil litigation.
Since my taking senior status, I have reoriented my views
as to the best use of my time and now spend over 50 percent of
my time working with judiciaries overseas, now having worked
with nearly 60 countries. I only mention this because I come
with a little different perspective which I intend to describe
to you later.
I am very, very pleased to be asked to testify again on the
division of the circuit. I want to make two points. The first
point is whether or not the case has been made for a division
of the Ninth Circuit, and second, if so, or if no? What is the
alternative to division of the circuit.
I have testified in opposition to division of the circuit
before, and one of the issues is who has the burden of proof. I
notice my colleague, Judge O'Scannlain, was attempting to place
the burden of proof on us, which is a very interesting ploy. In
January I was in Indonesia. They have a new constitutional
court and one of its duties is to certify election results. And
the legislature gave them a very short time period, 30 days in
one instance, 15 days in another, to certify over a country
that has a huge numbers of islands and voting problems.
I was asked to help them decide how to organize this
particular challenge, and it seemed clear to me that what they
needed to do was put the burden proof on the complainer rather
than litigate each complaint through hearings. They would never
get completed.
The burden of proof has always been on those who wish to
divide the circuit; that is, if you are going to make a change,
a case must be made of a need. The long-range plan for Federal
courts made this crystal clear: ``Circuit restructuring should
only occur if compelling empirical evidence demonstrates
adjudicative or administrative dysfunction in a court so that
it cannot continue to deliver quality justice and coherent,
consistent circuit law in the face of increasing workload''.
My position is that case hasn't been made, the burden proof
has not been met. I have outlined that in my written statement
to this Committee. Rather than restating my opinions, I have
attached a law review article I wrote in the Ohio State Law
Journal.
What I would like to do today is move to another area. But
first I just want to make a footnote here that I am very
grateful, Mr. Chairman, that you have indicated to my
colleague, Judge O'Scannlain, that we shouldn't decide issues
as important as this based upon case decisions.
I noticed that the junior Senator from Nevada, when he
introduced his bill, gave a press release indicating the
circuit should be divided because of the Pledge of Allegiance
case, which has now been argued before the Supreme Court. I
point out, Mr. Chairman, that the person who wrote that
decision is a judge from Oregon, and the very able dissent in
the case was by a judge from Los Angeles. The idea of dividing
circuits so that certain cases come out a certain way is
problematic. I am grateful to the Committee that this is not
going to be an issue.
What I would like to do is to bank upon your assurance that
everyone has an open mind, because I want to go a little
different direction. I think that what is needed is larger,
fewer circuits in the 21st century. Those who champion division
seem to express a preference for a small-court culture.
My good friend, Jerry Tjoflat, will testify in the next
group, and he and I have been on opposite sides of this issue
for quite a number of years. He equates the small, collegial
court to life in the small town, which he contrasts to the big
city where many people do not know, much less understand, their
neighbors.
This is indeed a romantic and appealing notion, that of the
small town, in which everyone knows each other intimately, and
can reach decisions by consensus in town meetings. Then on the
other side, Judge Tjoflat contrasts it with the so-called
``jumbo'' court, which he describes as less efficient and less
predictable.
There is one issue that is bound to come collegiality: and
that has been discussed this morning. There is no question that
as you add judges, you decrease collegiality, but its
significance depends on how much you try. My colleague, Judge
Tallman, said there is too much time in travel. But that is
because we have decided to travel, not because Congress has
told us to travel. It is not because we can't do it another
way. We have chosen to travel.
A few years before I came on the court of appeals in 1972,
nearly every judge moved to San Francisco when they were
appointed to the court of appeals. That is what we did. We
lived at circuit headquarters. We saw each other everyday in
circuit headquarters.
The judges of our court today can all move to San Francisco
and do what we used to do when we were a collegial court. But
we have chosen, for creature comfort, to live in different
communities. That is fine, but we shouldn't object on the basis
of collegiality when we were the ones who caused the decrease
in collegiality.
If it is a problem as serious as indicated, then why not
decide in the Ninth Circuit and in every other circuit in the
United States that we will all live at circuit headquarters,
which Judges used to do in the early days of our Republic?
The ultimate test is not the comfort of the judges, but
what is best for the country. The Federal courts do not exist
for the benefit of the judges; they exist, at taxpayers'
expense, solely to serve and meet the needs of the public.
Judges are, fundamentally, public servants. Judicial policy
must be dictated by concerns for the judiciary's mission, not
the personal preferences of its members.
Thus, I am not sure that we really gain very much by
comparing life in the big city with life in the small town. All
of us would like to go back to the days of Learned Hand where
we could sit and contemplate and enjoy the slow process, but it
is not going to happen. Life has gone on, and the people of the
United States want something else. So what I would like to do
is talk about regional courts.
I remember the time when the Fifth Circuit was divided. I
had been on the Ninth Circuit for some years by then, and the
Congress decided that the Ninth and the Fifth Circuit could
split, if the Judges chose to do so, or the alternative would
be that they could have what are called administrative units
and limited en bancs. We chose the latter, the Fifth Circuit
the former.
John Minor Wisdom, a judge of the old Fifth Circuit, told
me that the Ninth Circuit is the last regional court left. With
nostalgia, he said it. I want to talk to you a little bit about
my view, which is consistent with Judge Wisdom's perception,
about regional courts. Large circuits like the Ninth can
enhance stability, predictability and efficiency in law--just
the charges made by those who wish to divide. Let me talk about
stability and predictability.
Critics maintain that a large court is inherently unstable
and unpredictable. It is true the number of possible panel
permutations in a court increases exponentially as the number
of judges increases incrementally, and that one cannot predict
which panel will hear one's appeal. It is also true that you
don't sit as much with your colleagues on the bench. It does
not follow, however, that the law in such a court will be
unpredictable or unstable.
Of course, for lawyers and litigants, the best guide for
predicting the outcome of any litigation is a case on point.
Where there is no case on point, they are left to shrug their
shoulders and speculate what the court will do. The more
published decisions from which to work, the more guidance
lawyers and trial judges will receive.
Recognizing this principle, some smaller jurisdictions with
small courts voluntarily opt to follow the law of the State of
California, the largest judiciary in our country, for the very
purpose of providing guidance and predictability to lawyers and
litigants. Guam is a typical example.
Attorneys who practice law in small jurisdictions where
there is little precedent know how difficult it is to plan and
predict. A larger court is capable of providing sufficient case
law to provide truly useful precedent. It is precisely in such
a court where one can find a case on point.
But will these added cases lead to conflict and
inconsistency? Professor Arthur Hellman published a collection
of articles analyzing the Ninth Circuit and commenting on the
future of the judiciary. Hellman's empirical study--and I point
out again, empirical study--found that the feared inconsistency
in decisions of a large court simply has not materialized. I
have heard lawyers and others tell us our opinions are
inconsistent, I have heard a lot of people say they are
unpredictable, but there is only one empirical study and that
empirical study says those who believe this are wrong.
Hellman's study is the most thorough, scholarly attempt
that has yet been made on this issue, according to Professor
Daniel Meador of the University of Virginia, in that it goes
far toward rebutting the assumption that such a large appellate
court, sitting in randomly-assigned three-judge panels, will
inevitably generate an uneven body of case law. The contrary
view, though popular, is unsupported by evidence and is really
nothing more than seat-of-the-pants assumptions.
What about efficiencies? Chief Judge Schroeder has pointed
out efficiencies in our court and I will not repeat: but let me
state that statistics can be misleading. Statistics as to the
time of filing to the time of disposition take more into
account than the efficiency of judges. The efficiency of judges
is determined from the time they get the case until the time
they file the case.
Last year, the Ninth Circuit was second best of all
circuits in judges' promptness as measured by median time from
hearing to disposition, and, tied for first place for
submission to disposition.
The Ninth is the big circuit. Why has the ABA indicated
that there are efficiencies in the Ninth Circuit? Why does the
organization which represents all the lawyers of the United
States believe the Ninth Circuit is doing well?
The delay is before judges get the case. Judges in the
Ninth Circuit are more prompt than most all in the United
States. The question is getting the case to the panels, which
means more judges. The issue is not how judges are doing in a
large circuit; it is the lack of judges given to the circuit to
dispose of its work.
Now, let me turn for a moment to the 11-judge en banc
court. I was a member of the court when we decided to adopt
this program, so it is probably appropriate that I make a
comment on why we did it and how it can be changed, if our
court decides to do so.
A court of 11 judges is designated when there is to be an
en banc hearing. We were allowed by the Congress to do this by
rule of courts. My colleague, Judge Tallman, says a three judge
panel may not automatically be on the en banc court for that
case. We can change that. We decided at that time that we
wanted a fresh look at an en banc case and not have the three
judges of the original panel automatically on the en banc
court. The fresh look would mean we would have 11 new judges,
although any of them may be drawn. If Judge Tallman is correct,
we can change that tomorrow by local rule, if a majority of our
judges can be convinced by him that the court should be so.
The question of panel autonomy has always been sacrosanct;
that is, in most cases we rely on panels. Where we need to take
a case en banc, we can. We can change it from 11 judges. That
too is set by local rule. If Judge Tallman is correct that 11
is too small, change it to 13, change it to 15, change it to
21. It is all done by the court by local rule. Congress doesn't
have to do a thing. So if the limited en banc is imperfect, and
if we in the Ninth Circuit agree with Judge Tallman, we can
change that by local rule.
Finally, what about the full court? The full court can
always take the case. If a majority of the judges decide, after
the limited en banc court opinion, to sit as a full court, we
can do so by the same process that we voted for a limited en
banc majority vote. The court has voted, but has never gone to
full court. Why? Because I think the judges of the Ninth
Circuit don't believe that every judge has to have his or her
hand on the en banc pencil; that is, for purposes of finality,
11 judges have reached a decision, which is sufficiently final.
If we are wrong about that, we have the solution in our hands
and can take any case as a full court. We have two courtrooms
where it can be held.
Now, let me point out that in 1990, the report of the
Federal Courts Study Committee commented upon our limited en
banc. This committee was made up of a group of judges and
lawyers from across the country who looked at our system in-
depth. Senators and Congressmen, this is the report: ``The
limited en banc appears to allow more efficient use of court of
appeals resources and should be available to other courts of
appeals, even those that do not regularly have 15 active
judges. The growth in the number of circuit judges is likely to
continue, increasing the potential for en banc courts of
unwieldy size.''
I have taken more time on that than I should, but let me
talk about the alternative. Certainly, courts could be more
congenial if they sat in smaller groups, et cetera. But once
you divide the Ninth Circuit, where are you going in principle
as a Congress? Are you going to set certain limits on the size
of courts?
There isn't going to be a decrease in the number of cases
coming to the courts, regardless of what you do with the Ninth
Circuit. Filings will continue to increase. We will have more
people. Our people understand their rights better. They are
better educated. And I applaud these increases; it is showing
that our courts are providing their useful purpose.
So what is the average size you want of a circuit court?
One of the bills before you calls for a six-judge circuit.
Using that model, we would now have 30 circuits. What happens
as you continue to divide? What occurs when you have 30
circuits, when you have 40 circuits? We lose the whole ability
of having coherent national Federal law.
It is not just the division of the Ninth Circuit that is at
stake. The Congress will now decide what will be the Federal
appellate governance for the future of our country. By the end
of the 21st century, a Congress will once more have many more
of these division proposals before it. Do we eventually want
balkanization of the Federal system, or is it wiser at this
time to learn how to work with larger courts? Should we not be
considering combining courts and learning the process that we
have studied and developed in the Ninth Circuit?
It is not that large is bad. Large is different. And it is
not that we can go back to having small circuits of six or
eight judges throughout the United States. It will not happen.
We cannot turn the clock back. Our people demand more. The
question is, at the end of the 21st century, what kind of
structure do you want? And I suggest that continuing to divide
will balkanize the Federal rule of law in the United States. We
would be far better off with fewer, larger circuits. They have
problems, certainly. Nothing is perfect, but we must look at
what is best for the United States in the long term. And I
suggest it is time to open our minds to another model--fewer,
larger circuits.
Thank you very much, Mr. Chairman.
[The prepared statement of Judge Wallace appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge Wallace, and thank you
for your articulate support for the contrarian view that large
is not bad. You have articulated it well and it gives us a good
place to work from.
With regard to the question of burden of proof, I think I
have learned in the Senate there is no burden of proof up here.
It is however you feel when you cast your vote and whatever
factors go into your mind. It is really a political world. As
one who spent by far the biggest part of my professional life
in court practicing law, it is something you have to get used
to.
Justice Kennedy also in his letter to the White Commission
noted that, quote, ``A court which seeks to retain its
authority to bind nearly one-fifth of the people of the United
States by decisions of its three-judge panels''--in effect, a
three-judge panel binds 50 million people--``which include,''
he says, ``visiting circuit and district judges, must meet a
heavy burden of persuasion.'' So Justice Kennedy, who used to
be a member of the Ninth Circuit, as I recall, saw the burden
on the other side.
Do you disagree with that, Judge? Obviously, you do.
Judge Wallace. I do. Justice Kennedy was my junior on the
court.
[Laughter.]
Judge Wallace. I disagreed with him at times then and I
disagree with him now.
Chairman Sessions. Well, Judge O'Scannlain, do you have any
thoughts on the burden question and how the politicians here
should look at that issue?
Judge O'Scannlain. Well, it seems to me that time has
changed. As I indicated in my submitted testimony and in my
remarks, the relentless growth that we have seen and the
problems that it has created has called out for a resolution.
And it seems to me that three very respectable proposals have
been made in this session of Congress which I would hope our
chief judge and the members of our court would be given an
opportunity to review and perhaps get back to you, Mr.
Chairman, and to your colleagues on the House side with some
suggestions of how we might go about restructuring.
I see the burden issue as being responsive to these
respectable suggestions, and it seems to me that now that that
has been made from the legislative branch, the burden is on us
at this point to respond, and respond intelligently with
suggestions about why this particular restructuring has greater
strengths than others, or suggested alternatives or whatever.
But it seems to me that is our burden.
Chairman Sessions. Well, it is something that we would
value. I think there really is a lack of concrete commitment to
any one plan as being the absolute right way to do this. So I
think if anybody has insight into what they think the circuit
should look like if it were split, we would be delighted to
hear it.
I know the empirical study that you referred to may
indicate that there is not a concern among lawyers. But the
White Commission's report found that lawyers in the Ninth
Circuit report somewhat more difficulty discerning the circuit
law and predicting outcomes of appeals than lawyers elsewhere.
Ninth Circuit lawyers more often than others report a large or
grave problem--the difficulty of discerning circuit law due to
the conflicting precedents and the unpredictability of
appellate results until the panel identity is known.
Judge O'Scannlain, in your remarks you made reference to
the fact that frequently there is an embarrassing situation in
which a panel unknowingly conflicts with another panel. I
believe that was the point you made. Is that more likely to
happen in a larger circuit, and what did you mean by that?
Judge O'Scannlain. Well, it has happened and it is indeed
more likely to happen in a larger circuit simply because of the
fact that at any given time we have the potential for nine
separate three-judge panels to be sitting at the same time.
Whether it be in Pasadena or Honolulu or Anchorage or Portland
or Seattle, wherever we routinely sit, we could very well have
as many as nine panels sitting simultaneously, some of which
panels might have identical issues without necessarily knowing
that there is a case going to come down from one of the other
panels or has recently come down and hasn't been published yet.
We do have an internal procedure that is designed to
minimize that, but like everything it is not perfect. I respect
the chief judge and our clerk of court for identifying that
problem and coming up with a potential resolution of it. But it
is not a perfect resolution, and it can't be so long as you
have that kind of volume going on and that many panels which
could sit simultaneously.
Chairman Sessions. Chief Judge Schroeder, you might want to
comment on that, and then also I would like your thoughts on
how important you think it is to have additional judges for the
circuit.
Judge Schroeder. Yes, thank you, Mr. Chairman. I would like
to comment on the issue of conflicts. I recall just before I
went on the Ninth Circuit, I had a discussion with one of our
most revered judges in the history of the country, Judge
Coffin, of the First Circuit, and it was at the time when the
Omnibus Judgeship Act of 1978 or 1979 had just passed. Ten
judges were to be added to the Ninth Circuit and an additional
judge to the First Circuit, Judge Coffin's circuit.
He said to me that he thought that the Ninth Circuit would
have less trouble going from 13 to 23 judges than the First
Circuit would have going from 3 to 4, because there are always
problems of adjusting when you have different panels. We have
attempted to minimize that with our system of issue
identification.
We have, since the White Commission report, studied this
question. We have attempted to quantify the nature of the
conflicts. We have been unable to do so. We have put a website
up so that lawyers who find conflicts in our decisions can send
them to our website.
We have established a rule where we permit the citation of
our unpublished decisions to us in petitions for rehearing or
in requests for publication so that lawyers can cite to us
instances where we have issued conflicting decisions. And we
are getting almost no such citations, so the documentation, as
Judge Wallace has pointed out, for the existence of multiple
conflicts on a regular basis simply does not exist.
Chairman Sessions. How about the need for new judges?
Judge Schroeder. Thank you. The one thing I think that
there is consensus here on is that additional judges needed to
be added to serve the interests of the administration of
justice in the West. That is true, no matter what you do.
Judge Wallace said it far better than I could. The real
issue is what do we do with the courts, the Federal courts, as
the cases grow. This is true in the West and it is true in the
South. The Eleventh Circuit has chosen not to add judges and
has instead made very extensive use of visiting judges from
other circuits. Many of our own judges have been sitting in the
Eleventh Circuit. And they have also added the number of cases
per judge, so that now in the Eleventh Circuit the number of
cases that a judge sits on is now more than 800. I just read a
book on the division of the Fifth and the Eleventh Circuits.
They were worried about being overloaded when each judge had 67
cases.
Chairman Sessions. Judge Tallman, you talked about the
courthouse that might be existing in Seattle. I think maybe
there is one in Portland that Judge O'Scannlain made reference
to. But tell me, isn't it true that six district judges would
require more space than six circuit judges, actual space, and
how many courtrooms would you actually need in a courthouse for
six circuit judges? I know each judge has got to have their
office space, but in additional to the office space, you don't
need six courtrooms, do you?
Judge Tallman. Senator, I am on the Seattle space Committee
that is intimately involved in the planning for the renovation
of that facility. What we are planning is essentially a
regional court of appeals facility similar to what we have in
Pasadena as a satellite to the headquarters at 7th and Mission
in San Francisco.
The Seattle courthouse, as we are currently planning the
earthquake retrofit and renovation, will have an en banc
courtroom and two three-judge hearing rooms that will be carved
out of the existing five courtrooms that the district court
uses. We will use the fourth courtroom for a meeting room that
would be large enough to hold the entire court, as it is
currently comprised, if it wanted to come up and hear en banc
cases in Seattle. And the fifth courtroom will be turned into a
branch library for our circuit library.
But even under that configuration, and using the planning--
I guess it is called any Court, which is the Administrative
Office computer program for planning space needs--we still
can't justify filling the entire 104,000 square feet that will
be vacated by the district court. We are actually going to have
to find some sub-tenants for the court of appeals. So there is
plenty of room in the courthouse.
Chairman Sessions. The point is you have a library and an
office in that building. Is there another circuit that is
there?
Judge Tallman. We actually currently have three circuit
judges in that building, and then two of us have been forced
out, because of space shortages because of the needs of the
district court, down the street in a nearby commercial office
building.
Chairman Sessions. And when that gets fixed, you will
already have three--
Judge Tallman. We will have five, in total, two active and
three senior circuit judges.
Chairman Sessions. Already in Seattle, and already there is
chambers space for them there?
Judge Tallman. Absolutely, and we are planning under the
current planning documents resident judge chambers space for
ten resident judges and for nine visiting judges.
Chairman Sessions. That is a generous plan.
Judge Tallman. It is a big building.
Chairman Sessions. It sounds like you have got a pretty
good budget, Chief.
I am a little bit critical of the judiciary in feeling that
every magistrate and every district judge has to have their own
courtroom, when 75 to 80 percent of the time a judge is not in
his courtroom, and so they are vacant. So I think from a cost
point of view, we could probably do better.
But, regardless, you have, I think, brought us up to date
than appellate court is not quite the demand that magistrates
and district judges have, with jury rooms and all of that.
Judge Tallman. Mr. Chairman, we routinely share courtrooms
all throughout the circuit for three-judge panel hearings.
There is no such thing as a courtroom being assigned to a
circuit judge. It is simply in existence for a three-judge
panel to meet in, and the only reason we are planning two for
the Nakamura Courthouse is that we do, every other month, have
two three-judge panels sitting simultaneously in Seattle, so we
could easily accommodate them.
I would also like to add that the money for the renovation
is coming out of the rent money that we have already paid to
GSA as tenants of the building. So the Congress would not have
to appropriate new construction funds for that work. So with
all due respect to the chief's cost figures that she submitted
in connection with her written testimony, they are grossly
overstated if the Nakamura Courthouse were to be utilized for a
circuit headquarters.
Chairman Sessions. Chief Judge Schroeder, and then I will
recognize Senator Feinstein.
Judge Schroeder. Thank you. I would like to comment to that
briefly. There is a big difference between using a courthouse
as a regional place of holding hearings for the Ninth Circuit
Court of Appeals, which is what is being done in the Nakamura
Courthouse, and converting that courthouse to a circuit
courthouse.
I have studied this and we have studied it for some time.
We believe--and we have consulted with the Administrative
Office on this--we believe that the Nakamura Courthouse, if you
were to have a circuit of six judges under one of the
proposals, might be sufficient to be a circuit headquarters,
but you would then have to--because that proposal creates three
circuits, you would have to create another courthouse either in
Phoenix or in Las Vegas.
If you were to convert the Nakamura Courthouse to a circuit
headquarters for a larger circuit that is for more than six
judges, it would have to be substantially reconfigured. It
wouldn't work because you have to have space for files, for
clerks' offices, for circuit executive, for computers, for all
of the things that are now in San Francisco that would have to
be moved to a circuit headquarters.
Judge O'Scannlain. Mr. Chairman, if I could comment on
that, the best way to analyze this is in terms of the total
number of employees for the current Ninth Circuit and what
would result.
Just hypothetically, suppose we were going to split into
two circuits, one roughly two-thirds and one roughly one-third
of where we are now. If we have 300 employees in San Francisco,
San Francisco would reduce the number of employees presumably
by 100. And whatever circuit headquarters would be needed in
Seattle or Portland or whatever, you are only talking about a
smaller number, one-third of what used to be in San Francisco.
The assumption seems to be floating around here that
somehow--
Chairman Sessions. That is the way business people think,
Judge, but I am not sure judges think that way.
Judge O'Scannlain. Well, some of us do.
Judge Schroeder. Again, I would like to invite you to come
and see how the space is utilized. It is not just people, it is
files and documents.
Chairman Sessions. Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman. I
particularly want to make a comment on Judge Wallace because I
remember him appearing, I think, when he was chief judge on
this same subject. And you have lost none of your brilliance. I
want you to do know that, and it is very much appreciated.
One of the problems we have, Judge Wallace, is that this
comes back and back and back again, which, if you sit on our
side of the dais, you have to come to believe means that there
are people out there who want to split the court. And it is
particularly in the Northwest where this view applies. Both
Senator Craig and Senator Murkowski mentioned the popularity of
it in their States. You have a relatively new Senator in
Senator Ensign, and yet he makes a proposal as well.
So it is out there, and I would say to all of you I don't
think it is going to subside. So the question is whether we
tackle it or we don't tackle it. My view has been that I have
seen no overriding reason up to this point to tackle it. I
think it is much more complicated than we have looked at it to
date. I will begin to get cost estimates now from CBO and
others on each of the bills.
Respectfully, Judge Tallman, I don't think it is going to
be that simple. I have found that courthouses become the
redeeming fact of judges. I mean, they all want new
courthouses. It just doesn't stop. I hear different States
wanting the courthouse, et cetera.
Senator Craig. Senator, I think cost per square footage on
courthouses is the highest of any Federal buildings in the
Nation.
Senator Feinstein. I am sure that is right. Thank you. I am
sure that is right.
So the question comes, if you are going to do this, how do
you do it to really serve the public the best? This is part of
the point, and my own view is that the two-circuit split
doesn't really accomplish very much at all because it leaves
the heavy preponderance in the Ninth Circuit. The three-circuit
split doesn't go much more than that because if you look, as
has been suggested by one of the jurists, into sort of the
split of business, under the Ensign proposal the Ninth Circuit
would keep 69 percent of the cases, under the Murkowski
proposal 72 percent of the cases, and under the House proposal
81 percent of the cases. So there is no way you can do a split
without adding substantial new judges to the Ninth Circuit. I
think that has to be the first point we have to have agreement
on.
Then the second point comes in with precedent, and I want
to ask each of your views on that. If there were to be a split,
how would you handle the issue of precedent?
Why don't you begin, Chief Judge?
Judge Schroeder. Well, the precedent for precedent is the
Fifth Circuit-Eleventh Circuit split, which was that all of the
previous decisions of the Fifth Circuit were adopted as
precedent for the Fifth and the Eleventh.
Senator Feinstein. So you would say Ninth Circuit precedent
be adopted among any new circuits?
Judge Schroeder. I think that would be the way probably
that it would be handled, but I don't speak having discussed
it.
Senator Feinstein. Well, I think that is important.
Judge O'Scannlain. Thank you, Senator. I would expect on
the first official meeting of the new circuit that the judges
would adopt a rule of court that all existing Ninth Circuit
precedents shall become the law of the new circuit from day
one. I think that is what happened in the Fifth Circuit and I
think that particular fact goes a long way to dispelling the
concerns of those who do worry about whether the law would be
different if it were different judges or in different parts of
the existing circuit. I think that is a very important point.
Senator Feinstein. Thank you very much.
Judge Tallman.
Judge Tallman. Senator, I think that Judge Tjoflat can
address your question directly because they had that problem
and he can tell you how they resolved it. But my understanding
is that for purposes of respecting precedent and the fact that,
let's say, in business transactions lawyers have counseled
clients in the past to rely upon existing Ninth Circuit
precedent in structuring their transactions, you would have to
leave that law in place initially until such time as the new
circuit had occasion through future case development to perhaps
address those issues in the future. Maybe new Supreme Court
cases would come down that might change it, but I think you
would have to, for the stability of the transition, adopt
existing precedent.
Senator Feinstein. Thank you, Judge.
Judge Wallace.
Judge Wallace. I have nothing to add. I agree with my
colleagues.
Senator Feinstein. Thank you very much.
Another point I would like to raise is every time we have
considered this before, we have always looked to the positions
of the State bars, the individual State bars in all of the
States. At this point, we have had just a smattering of
response and I do think we need to get that.
I would suggest that if we were to do this and do it right,
it is going to have substantial cost to it well in excess of
$100 million. I think we need to at least begin to get some of
those figures assembled and I would like to ask if the court
could assemble some figures for us. You mentioned all of the
technology that would have to be duplicated, and I think we
need to get a handle at least on those as well.
Judge Schroeder. We would work with the Administrative
Office to do that, and it is not just court figures; it is the
circuit-wide.
Senator Feinstein. Yes. Now, one question on the en banc
proceedings. Because this was raised, let me go to the Pledge
of Allegiance case. It would seem to me if there were any case
where the circuit would sit as an absolute full circuit, it
would be that case because judges must know the resounding
impact of that case.
It would seem to me that rather than leave a case like that
which so impacts the history of what this Nation is all about,
a very solemn Pledge of Allegiance, the entire circuit would
sit. So from the time this came down, I was puzzled why that
didn't happen.
Could any of you take a crack at that?
Judge O'Scannlain. As you may recall, Senator, I wrote the
dissent from failure to rehear the case en banc. So the public
knows that there was a call for a rehearing en banc, and what
the public can surmise is that there were less than whatever it
was, 14 votes at that point, in favor of taking that case en
banc.
But I would like to suggest that there are probably a
variety of reasons why judges would vote one way or the other
on that proposition. For the same reason that you suggest that
this is a very high-profile issue, some of my colleagues might
very well have decided not to vote in favor of en banc
rehearing so that the Supreme Court could get the case as
quickly as possible, precisely because it is such a case of
major importance. But there is no record of the individual
views of the 26, or whatever there were at that time, judges.
So we can't really go beyond that level of speculation.
Senator Feinstein. Judge Wallace.
Judge Wallace. Because I am a senior judge, I can
speculate. As I indicated, the majority opinion was written by
Judge Ted Goodwin. He was appointed to the district court and
to the circuit court by Richard Nixon. He is from Oregon. He is
a judge who looks very carefully at the dispositions.
I have read the case. I am more persuaded by the dissent,
but the majority opinion makes a good point that a case in the
Supreme Court leads them in that direction. It was a case
authored by my former colleague, Justice Kennedy, and it may be
that our the court thought this is an issue for the Supreme
Court; it is their problem, they should look at it. And they
have.
We aren't always happy with the decisions we have to write.
We have to follow the Supreme Court and we have to follow our
own precedent. I think that the opinion can be justified on
that basis and that the action of our court was proper that
this is one the Supreme Court is going to have to solve, and
apparently they are going to if they can find standing.
Senator Feinstein. Thank you.
One of the things that I have had a great deal of trouble
throughout the years with as this has come up over and over and
over again is the diversity issue, the three-State issue. Yet,
there is so much diversity. I mean, just in California alone a
test of diversity, in a sense, is met.
The question comes, too, because there is such feeling from
the more agricultural States, I think, and I think Idaho is
probably a classic example--and Senator Craig, I am sure, will
not hesitate to correct me--that they don't belong in the
circuit. There are feelings that some States have such
different interests that they belong in a different circuit.
How do you look at that, how do you regard it? How should
we look at that?
Judge O'Scannlain. Senator, the notion that there is a
minimum number of circuits, I believe, is one that arises in
the academy. The law professors seem to think that it is very
important to have a minimum number, presumably three. Now, I
don't know why it has to be three, necessarily. Two might work.
Theoretically, one could envisage a one-State circuit. After
all, you have the District of Columbia Circuit, which is a one-
district, one-entity circuit.
The reason why commentators have supported more than one
State tends to have to do with impact on the State itself. For
example, California has three different options. One, there
could be an all-California circuit, a single-State circuit, but
that would give rise to perhaps unhealthy competition between
the circuit court of appeals, the Federal court, and the State
supreme court, both of which have overlapping responsibilities
on a number of issues. The other option would be to put
California into two separate circuits, which was the
recommendation of the Hruska Commission. But I recognize,
Senator, I believe you have some reservations or concerns about
that.
So the analysis has been, all right, assuming California is
the building block, what are the least populace or least case-
heavy States that could be added to it to accomplish a split
that would result in a circuit which would still contain
California and then the minimum addition, whether it is plus
one or plus two.
So in a sense, you have a conundrum, the problem being that
California is so large that it could certainly justify a
circuit all by itself, with all the diversity that it
represents and with the four separate judicial districts within
the State. There is no question, based on population or even on
caseload, that that would certainly be viable. The real
question is what do we do with the notion that you have a
Federal role and you also have a State role and you want to
minimize the tensions the best you can.
Judge Schroeder. May I comment to that, Senator?
Senator Feinstein. Please.
Judge Schroeder. Thank you. The reason historically that
there has been a three-State principle has been, I believe, the
need to have at least six Senators in order to get the
resources for a circuit because the Senate has such a vital
role in confirming judges.
As for the diversity, I think there is no question that
California is diverse. The concern has been that the driving
force here has been to create a new circuit in the Pacific
Northwest from those States, and the concern has been that that
is not a diverse interest because the reason for the movement
to create a circuit and the concern is that there is driven by
certain economic interests.
I will only reiterate the concern expressed by my
distinguished late colleague, Judge Wiggins, who sat in
Congress and who pointed out repeatedly in opposition to my
distinguished colleagues that we should have a circuit made up
of the Pacific Northwest. He said that Congress makes one law
for the entire United States and we should not create courts in
order to interpret that law differently for certain parts of
the country. I share that concern.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Sessions. Thank you.
Senator Biden said that one time. I was presiding in the
Chair and he said, well, there is only one Constitution and one
Federal law; you ought to get the same ruling in every Federal
court in America. Maybe the Northwest knows about salmon and
Arizona judges have more expertise in immigration, but I think
you make a good point.
Judge Wallace, I would just say that I sort of took your
position when the panel rendered the Pledge case. Most of the
Senators criticized the Ninth Circuit, including the Democratic
Leader and Democratic Whip, pretty aggressively.
Senator Feinstein. May I put Senator Leahy's statement in
the record?
Chairman Sessions. Yes. Senator Leahy's statement will be
made a part of the record.
I remember saying that, well, it is the Supreme Court's
time to get this thing straight. They have muddled the law of
separation of church and state in many, many ways, and
ultimately they have got to call the question. I do believe
that.
Senator Craig.
Senator Craig. I am learning a great deal this morning--and
I appreciate that--from your differing points of view about a
single issue and how we view it as objectively as we can.
As I said earlier, I am not an attorney. At the same time,
I do believe it is my incumbent responsibility to attempt to
reflect a majority opinion of my State as best I can. So in
listening to all of you this morning, I am factoring several
things in. So let me make several observations as it relates to
some of what you all have said.
Judge Schroeder, it is interesting that politics would be
the original designer of a circuit; so many Senators, therefore
so many circuits. But the politics of that day did not
understand that one State could become so very dominant. In the
case of resource allocation today, the State of California
controls a little better than a sixth of the votes in the House
and the Chairman of the House and Ways Committee. So from the
standpoint of California being impaired by resources in a
division, that day has passed, and we must retain as best we
can a certain amount of contemporary opinion. At the same time,
reality suggests different kinds of things today than it might
have at the time of that design. I don't dispute the original
basis.
Judge Schroeder. May I comment?
Senator Craig. Please.
Judge Schroeder. I was giving the historic basis.
Senator Craig. Exactly.
Judge Schroeder. On the domination of California, no one
understand your views more than a judge from Arizona because we
are adjacent to California, but we know that we are tied to
California. We don't want to lose that tie, we don't want to be
dominated. Therefore, we believe that the balance of the
existing circuit is the best way to achieve the kind of balance
and efficient administration of justice for all the people in
the West, which has to be my first priority.
Senator Craig. Let me now turn to an interesting
observation that Judge Wallace has made as it relates to size.
Size is inevitable, so we ought to learn to manage size. If
that is true, let me offer you this suggestion, Judge, as it
relates to the Ninth Circuit and the Eleventh Circuit.
If you think you can manage what you have got now, give it
another decade because of the rates of growth in those two
circuits. If you look at the rate of growth in the three States
of Arizona, Nevada and Idaho alone, I would suggest to you that
that circuit will grow increasingly larger proportionate to
other circuits, simply because many of us in the West would
suggest that the rest of the world has discovered us and they
are wanting to come there to live.
Be that as it may, the growth factors are substantial. I
find it very interesting in my State, in a time of relative
economic flatness, the growth hasn't changed; people are still
coming in high numbers. So I do believe we are looking at a
very large circuit that will grow larger than others,
increasingly so, and that remains a problem. I think it is also
true of the Eleventh, for a variety of maybe different reasons,
but clearly growth is at hand in those two circuits, more so
than almost any other circuits in the Nation. That is part of
the frustration I think we are all looking at when we look at
the facts of the circuit and the caseload involved and the time
lines and whether justice is, in fact, being rendered in a
timely way.
Let me go to another point that I find quite fascinating.
Some would like to retain the small-town culture. That day has
passed; let's get on with bigness. I would suggest to you that
America does want to try to retain as best it can the small-
town culture.
I find it very interesting that in almost attitudes today
reflected in polls that Americans really want family and
community to supersede the influence of a broader, larger
culture, if you will. So reflective from some of the bases from
which we make decisions here, I think we all take that into
consideration. That is the political side of evaluating how a
court or the process itself works.
I find it very fascinating that that remains true even in a
State like Idaho that is now growing very rapidly. Of course,
it is ironic that the growth itself is a product of those
searching for the small town, and in searching for it they
create the large town, and that is inevitably true. So it is an
interesting struggle we are at. At the same time, I think what
we now look at and must look at is numbers and timeliness and
can, in fact, decisions be rendered that are consistent with
law and precedent that is extremely important.
Lastly, I found it interesting, Judge Schroeder, your
observation about the culture of the court and the character of
the western growth. Idaho has grown at an unprecedented rate in
the last decade. Certainly, for Idaho, it has been a struggle.
What is fascinating is that half of those who come to Idaho
are from California. So it isn't that the California culture is
going to escape Idaho. It is moving there. I would suggest that
California is culturizing the West. Whether I like it or not,
the reality is quite true.
Senator Feinstein. Point of personal privilege. That is
actually the nicest thing you have said in a long time.
[Laughter.]
Senator Craig. See, Dianne, you are seeing my kinder,
gentler moments here.
But it is very true. That is the reality of how we grow in
the West. As California grows, people from the West love the
West, so they are not going to leave the West and they go
elsewhere in the West. That is true of Idaho and I suspect it
is extremely true of Nevada today. It has always been true of
Arizona and other places. But, statistically, that is true.
About half from California, half from the rest of the United
States, come to Idaho.
What is at stake, I do believe--and I don't disagree with
the Senator from California about differences as it relates to
how Idahoans perceive a San Francisco judge judging on an Idaho
agricultural, resource, or public land issue. They feel, and
have expressed very openly, that there is an inherent urban
bias, if you will, upon a State where its ruralness, or more
importantly its historic and what I believe legal precedents of
a relationship between its people and the land are, in part,
different. That has always been a frustration, also, and I
think that has helped push the issue of a division of the court
to try to get judges that are more reflective of the culture
that they are judging cases coming from.
Well, those are some observations. My bias toward splitting
the court I have expressed for a good number of years. I do
believe that I agree with Judge O'Scannlain. I believe that my
bias is now being increasingly confirmed by a broader majority
of citizens because of the sheer numbers involved and what is
happening out there. What might have started as a political
bias, if you will, or a bias based on politics is rapidly a
bias that may well be justified by size and the ability of the
court to effectively function.
Thank you all very much for your observations and your
concern. We will rely on you as we must and should, because of
your experience, as we draw toward what I think is an
inevitable decision on how we handle this issue.
Thank you.
Chairman Sessions. Thank you, Senator Craig.
Counselor Kyl.
Senator Kyl. Thank you, Mr. Chairman.
A lot of the concern about a potential split of the circuit
has to do with the en banc review issue in a court as large as
the Ninth Circuit. That was a significant focus of the White
Commission which resolved it in a different and unique way that
I think, by the way, Mr. Chairman, we should go back and review
because there was a lot of work that went into that commission.
I disagreed with the specific recommendation of the commission,
but I thought it had a lot of very sensible things to day, and
I think we should go back and review that thoroughly.
But this question of en banc review, especially with a
court as large as the Ninth Circuit--and I wanted to review
something that Judge Posner said that puts this at the top of
the list of things we have to address. Judge Posner has called
this limited en banc procedure a formula for in-fighting and
doctrinal incoherence, among other things because of the
possible discrepancy between the three-judge panel and the
random draw of ten judges, plus the chief judge, on the en banc
panel, the lack of collegiality and the other things that have
been mentioned here.
Now, Judge Wallace says, well, we might as well get used to
this because inevitably the population in all of the circuits
is going to grow. The caseloads will grow, and we should be
using the Ninth Circuit in this situation as somewhat of a
pilot project to figure out how to deal with the inevitable
growth of all of the other circuits.
I suppose one response to that is, yes, that is certainly
true, but is it still nevertheless healthy to have a mega
circuit that not only is about as big as any two other circuits
combined, but growing at a faster rate than any of the other
circuits?
In other words, should we be trying to deal with that
growth situation as a group of equal courts rather than one
that is so substantially larger and growing at a faster rate?
In other words, is there is a question of optimum size, even
with growth, and of relative size that is important for us to
address?
Could I ask, with that sort of obtuse observation, each of
you to just address it as an open-ended question, but focused
on especially the problems with en banc review that I think all
of us would acknowledge are one of the driving forces in
presenting this issue?
We will start with Judge Schroeder and go down the panel.
Judge Schroeder. Yes. Senator, as Judge Wallace noted in
his testimony, the question of en banc review in our procedures
we can change. We established the limited en banc; we can
change it. I would be more than happy to talk with you or with
anyone else. We can take it back to the court and discuss it
and see whether it is advisable, whether it would make any
meaningful difference to expand the size of the en banc. So we
can do that.
On the whole issue of circuit configuration, I think that
Senator Craig made a very good point and that is in line with
what we have been saying. The issue here is what do you do with
the fact that there are growing areas of the country where
cases are going to continue to be filed at an increasingly fast
rate. That includes the Eleventh Circuit and the Fifth Circuit
and the Ninth Circuit.
It may well be that the time has come for there to be
another independent look not at the whole system, not at the
Ninth Circuit, but simply dealing with the issues of how to
administer justice in those areas which are growing so fast
that additional judges are going to have to be needed. I think
that larger issue is what needs to be confronted.
Senator Kyl. Judge O'Scannlain.
Judge O'Scannlain. Senator, I think the thing to keep in
mind with respect to this limited en banc option is that this
is a creature of statute that permits two circuits to function
with less than its full court. The only other circuit besides
ours that qualifies is the Fifth Circuit and they have, since
1980, declined to function with a limited en banc court. We are
the only court of the two that are eligible that has adopted
the limited en banc option.
I think what you see from the testimony, in particular, of
my colleague, Judge Tallman, and some of my comments is that
there are a lot of people who wonder if the limited en banc
process isn't broken, for a variety of reasons. First of all,
the notion that 6 judges can bind 28 is in itself a very, very
difficult concept to deal with.
But more importantly, there have been a number of instances
now, and in particular the Payton case which Judge Tallman may
wish to speak to, where more judges on our court voted one way
than the six judges who had the last word. More than six voted
the other way, so it is a very, very difficult case to support
at this point.
Now, it is true that we could sit as a 28-judge full court
en banc. There were two calls; they both occurred since 1986,
when I came on the court. One had to do with the physician-
assisted suicide case, where the vote was eight to three in
favor of finding a constitutional right for physician-assisted
suicide. There was a call, but there was less than a majority.
So the Supreme Court took it and reversed us.
Senator Kyl. Excuse me. When you say there was a call,
could you explain that for the record?
Judge O'Scannlain. There was a call for a full court
rehearing after the eight to three en banc decision, and the
call was unsuccessful. In other words, maybe it took 15 votes
at that point. Whatever a majority of the number of active
judges at that time was, it did not materialize. So therefore
it went on to the Supreme Court.
The other one was a six-to-five decision where the majority
held that there was no Eighth Amendment violation when the
State of Washington used as a form of execution in capital
cases hanging. There was a call for that case to be reheard en
banc as well because, first of all, it was a six-to-five case.
I am sure a lot of people would think that in and of itself
might justify a rehearing by the full court, and obviously it
was a very significant constitutional issue. Well, there was a
call made at that point for a full-court review and the full
court did not do so. There was not a majority to do so. I
think, as a matter of fact, that case never went to the Supreme
Court. As I understand it, it ended at that stage.
So there is a real problem, and the only reason we have a
limited en banc is because we are so large. That is really what
we are dealing with here. Every other circuit will function
with a full court en banc, and have done so all along. I think
we have arrived at a point where there is a diminishing
confidence in our limited en banc process.
Judge Tallman. Senator, my response would be if the limited
en banc is such a good system, why hasn't anybody else emulated
it? The Fifth Circuit certainly could if it wanted to, but has
chosen not to do so. And making en banc panels larger is not a
solution. Judge Tjoflat, I think, is prepared to tell you about
his experiences with an en banc where they actually had some 25
or 26 judges, and at that point it begins to look less like a
court and more like an argument in the House of Lords. The
dynamics are very different when you get a group that big
trying to decide a single legal issue.
Senator Kyl. If I could just interrupt--and, Judge Wallace,
excuse me--that is the situation that is going to exist in,
let's say, a hypothetically California-only Ninth Circuit. You
are going to have that many judges on the court today, and
eventually you will have that many judges on some of the other
courts.
So what does that say about the desirability of having all
25 judges, let's say, sit on a case?
Judge Tallman. Never having done it, I agree with Judge
O'Scannlain. The few times it has been suggested on our court,
it has been voted down, and my understanding is because of the
concerns that people have of trying--I mean, imagine as a
lawyer standing in front of three tiers of judges in the
courtroom to argue your case.
Senator Kyl. Well, excuse me again for interrupting, but
knowing the six that I was going to argue before, I might well
relish that notion.
Judge Tallman. What you might not like would be the
individual opinions that could be generated because,
theoretically, every one of the judges could write separately
if they wanted to. And trying to discern the legal rule out of
that ruling would make a mockery of our attempts to do so, such
as when the Supreme Court writes multiple plurality opinions.
Senator Kyl. Well, I would suggest the dynamics itself
would probably move toward a consolidation of opinions and
views.
Could I just interrupt and ask one more question, too, in
terms of your procedures? Twice, you said, since you have been
on the court, Judge O'Scannlain, there has been a call for a
full en banc review. Procedurally, how does that work and could
that theoretically happen in any case, or how does that work?
Judge O'Scannlain. Well, when I say call, that is the
device that we have within the court. In other words, a judge
will simply call for a vote on whether a given case be reheard.
We have about 40 of those a year, on average, from 3-judge
panels. I might, for example, see a decision in a particular
three-judge panel and I have some concerns about whether that
is an accurate statement of Ninth Circuit law. So I will send a
message--we operate by e-mail--to my colleagues saying I would
like to call that case.
Then that starts a process by which we have an internal
exchange of memoranda. Some of these memoranda are even more
carefully done than a lot of briefs that we see. A lot of
effort goes into it. Ultimately, there will be an end to that
period and there will be a vote and each judge will vote either
yes or no on whether a case should be reheard en banc or not,
and it takes a majority to do so.
Senator Kyl. A majority of the full court?
Judge O'Scannlain. A majority of the active, non-recused
judges, yes, that is correct.
Senator Kyl. And then that creates an en banc panel?
Judge O'Scannlain. Well, no.
Senator Kyl. That is the procedure for the full-court
review?
Judge O'Scannlain. Well, it is the same for either. In
other words, the call simply asks for a vote. Whether it is
with respect to a 3-judge case or after an 11-judge panel has
issued an opinion, a call operates exactly the same way.
Senator Kyl. So just to make sure I understand, have there
been roughly 40 calls from an 11-judge en banc panel for a
full-court review?
Judge O'Scannlain. No, no, no. I hope anything I might have
said would have been clear.
Senator Kyl. Only twice since you have been on the court
has that happened?
Judge O'Scannlain. Only twice since I came on, and as I
understand it, only twice ever, because this process only
started in 1980 or so, or 1981, when that statute became
effective.
Senator Kyl. And Judge Schroeder is acknowledging that. So
could I summarize it this way, then, that while your procedure
admits of the possibility of a full-court review upon a
majority vote of the full, qualified court, obviously it has
not occurred and it would be very sparingly done?
Judge O'Scannlain. Right. The 40 number refers to the
average number of calls on three-judge decisions that we are at
about now.
Judge Schroeder. I think that is the key statistics that
Judge O'Scannlain is correct about, that out of 8,000 cases
that are filed and some 4,000 that we actually decide, on
average, there may be 30 to 40 requests for a vote to go en
banc from the 3-judge panel decision.
Judge O'Scannlain. And roughly more or less half of those
are successful.
Judge Schroeder. Yes.
Senator Kyl. Judge Tallman, before I call on you--and I
still am going to get to you, Judge Wallace, and I know my red
light is on, but I think this is an important point.
So am I correct, then, that out of the full caseload of the
court in a year, there will be only be between 20 and 40 en
banc hearings?
Judge Tallman. That is right. If you look at page 17, which
is Appendix B of my written testimony, I have listed for you
the total number of en banc calls.
Senator Kyl. Thank you. I will review that carefully.
Judge Tallman. And when the call is made, taking 2003,
there were 40 en banc votes, but only 13 passed and 27 failed.
Senator Kyl. That is very helpful and I appreciate that.
I will just conclude with this, since I referred to Judge
Wallace, back to my central question, your point being that
while all the circuits are going to grow, we might as well
figure out how to deal with that using a court that is already
big, and my sort of posited response, yes, that is fine, but is
it still perhaps too big relative to the size that we would
like to see even though, of course, all of the courts are
inevitably going to grow in size.
Judge Wallace. Senator Kyl, thank you for the question. My
point is that we ought to think further than just the Ninth
Circuit; that is, I have been pleading for, and there has not
yet been consideration of, a discussion about whether we are
going the wrong way.
Why should the First Circuit have so few judges? We always
talk about the Ninth Circuit having many, but why shouldn't
consideration be given to combining circuits? It is not
politically easy, I am sure, and would not be accepted well by
judges of the courts of appeals. But that is not the issue. The
issue isn't the creature comfort of the judges. It is what is
best for our Republic.
To me, you will never get to the place where you decide
what you need for the growth that is going to occur everywhere,
more in the West than in the East--until you decide if you on
the right track by dividing and balkanizing or whether you
should look to larger circuits and begin thinking of combining
smaller circuits. Then the issue really is before you. There is
no question that growth is going to occur and we are not in a
position to really accommodate that unless we look at the issue
of fewer, larger circuits.
Senator Kyl. Excuse me. I didn't mean to be impertinent. I
have got to conduct a luncheon at 12:30 which I Chair, and
therefore I am going to have to go. And I was just conferring
with the Chairman about that problem, since I am not going to
be able to hear the rest of the testimony. I apologize for
being rude.
Judge Wallace. That is all right.
As far as the full court en banc is concerned, the Fifth
Circuit tried it and didn't like it. That doesn't mean that we
couldn't hold a full-court en banc and be able to accommodate
it. It depends on the personality of the judges who are
involved. If Judge O'Scannlain or others are disappointed with
our limited en banc, they can go to our court and ask for a
change of our en banc rule. We can do away with the limited en
banc tomorrow if a majority of the judges wish to do so.
What I am suggesting is there is no perfect way of
accomodating growth in the future. But if we can be flexible in
our approach and experiment in pilot programs, as we have in
the Ninth, not kill the pilot program, but think in long range
terms: what do you want at the end of the 21st century? I think
this opens up the door to consider having fewer, larger
circuits as the way of the future.
I might say, Senator Kyl, that we shouldn't limit the
contribution small States make to our large circuit. We have
many times when the view of a small-State judge, such as Idaho
or Arizona, carries the day because it is a different
perspective.
Senator Kyl. I have no doubt that the court would be well
served if it listened more closely to the views of those small-
State judges. Nothing against my colleagues from California, of
course.
Well, I was just going to ask one other question. I don't
want to get into the procedure of the court, but I was kind of
curious from your last comment whether you do this in secret
ballot and whether there has ever been a vote of the judges in
the circuit on the hypothetical question of splitting the
circuit. Has that ever occurred?
Judge O'Scannlain. Well, it has not occurred and I think
there are a number of us in the court who feel that it would be
a very desirable thing to happen at some point. It would be
very, very useful, it seems to me.
Senator Kyl. It would be interesting because contrary to
those who sort of relegate the judges to a lesser role in the
process of making this decision, frankly, while I am not
willing to defer to the court, especially since undoubtedly
there would be a divided opinion within the court, I think we
have to really respect the experience that all of the judges on
the court have in this matter.
You certainly know far better than we do about how you can
best function. Now, that doesn't mean you have the last word,
obviously, but frankly it would be very, very informative for
us, I think, to get that kind of an expression of view.
Judge O'Scannlain. We could either do it ourselves or
perhaps through the Committee there might be a request that we
have a secret ballot on precisely that issue, and I think it
would be very interesting to see the results.
Judge Wallace. The discussion just changed, I would point
out, from a request to a secret ballot, and that has never been
the view of our court that things are done in secret. We are a
collegial court.
Judge Schroeder. We have never done that. We have never had
a vote in secret. But, Senator, if I may just add that we are
scheduled to discuss this issue of the circuit configuration at
our next retreat which takes place in about ten days, and if we
wish to have a further discussion at a court meeting and take a
vote, we will.
Senator Kyl. If a majority of the judges call for a secret
ballot, you will do it, right?
Judge Schroeder. If they call for a secret ballot, we will
do that, but we will vote on that openly.
Chairman Sessions. Thank you, Senator Kyl.
Well, it has been a very, very interesting and rewarding
discussion, I think. People have put their opinions out. I
guess I am inclined to be concerned that as the court grows, we
are reaching just an intolerable level, unless you really do
believe in a huge regional court.
As I recall the rule of 7, 7 percent growth means you
double in 10 years. Isn't that right?
Judge Tallman. Yes.
Chairman Sessions. So at 13-percent growth, we are moving
rapidly forward, it seems to me. I think a court this large
becomes more like a legislative body and less like a court. You
have less pressure to work with your colleagues and more of a
willingness just to vote like you think that minute.
I am not aware of any State appellate court that has ever
existed as large as the Ninth Circuit. In New York, they have
grown from small to big and they have always kept a smaller
supreme court and appellate court. Maybe they have intermediate
court systems.
But I think about Alabama, Judge Wallace, on the question
of how many circuits. I think most States have multiple
circuits. We have 67 counties and I believe 45 or 55 circuits
that feed to the supreme court or the intermediate courts for
certain specialized cases. So I think that is the model America
is used to. I appreciate your willingness to think outside the
box. I am not there yet, but I believe we do better to stay
with the system that brought us here which has given us the
greatest legal system in the history of the world.
Thank you so much. We have got another panel.
Judge O'Scannlain. Thank you, Mr. Chairman.
Judge Schroeder. Thank you, Mr. Chairman.
Chairman Sessions. Excellent testimony, and your written
testimony was superior, also.
Judge Tallman. Thank you.
Judge Schroeder. Thank you.
Chairman Sessions. Judge Tjoflat and Judge Coughenour,
thank you. I am sorry to keep you waiting so long. As you can
see, the interest was high in this panel, and I guess the
judges that are in the middle of the discussion have a lot to
say and want to be heard on it.
Both of you have submitted superb written testimony. I am
sorry we have lost some of our numbers. There are meetings that
occur this time everyday by both of the Senate Leaders, Senator
Daschle and Senator First, and that has caused us to lose some
of our numbers.
I would like to hear from you, if you could allow your
written testimony to be made part of the record, and just hear
from you straight up how you see this issue and what we are
going to do about it, if anything.
Judge Tjoflat, I know that you were a member of the old
Fifth Circuit and were part of the change with Judge Wisdom,
who also apparently voted to split the old Fifth into the
Eleventh. I do remember that, and I don't think there is a
single judge that would vote to merge them back. You served,
also, as chief judge of that Eleventh Circuit Court of Appeals
and had the administrative responsibility, as has Judge
Schroeder.
STATEMENT OF HON. GERALD BARD TJOFLAT, JUDGE, U.S. COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT, JACKSONVILLE, FLORIDA
Judge Tjoflat. Thank you, Mr. Chairman. This is the second
time the Committee has asked me to appear on the matter of what
to do about the Ninth Circuit. The last hearing was, if I
recollect, 1995, October, or 1996, which led to the creation of
what became known as the White Commission.
I asked the general counsel of the Committee, why do you
want me to appear at a hearing--that was back then--on what to
do about the Ninth Circuit? And they said, well, you were in
the old Fifth Circuit and you are what is left of the old Fifth
Circuit who is still active.
Judge Godbold and I were elected by the old court as the
spokesmen on the circuit split issue, the reason being that
Chief Judge Brown was against the division of the circuit. So
the court decided, well, we will have two other judges appear,
one from Alabama and one from Florida, to testify before the
House and the Senate. So I have been wrestling with this
problem all this time.
Let me say at the beginning that I commend the Ninth
Circuit for doing an incredible job in the face of an
overwhelming caseload and problems that are beyond
comprehension. I was chief judge of the Eleventh Circuit for 7
years and I was very active in the administration of the old
Fifth, and we never saw anything comparable in terms of the
onslaught of cases and personnel and the number of judges you
have to deal with. So my hat is off to them. The finger is in
the dike and they have done a damn good job--excuse me--of
handling it.
Let me just share some experiences about what happened in
the old Fifth Circuit after the Congress added 11 judges to the
court. If you will recall, during the 1970's, judges weren't
added to the federal courts until the Carter administration. In
1979, I guess it was, or early 1978, the quadrennial judgeship
bill, which was long overdue, added 10 judges to the Ninth,
which increased the court from 13 to 23, and 11 to the Fifth,
which increased it from 15 to 26. At that time, we had more
business in those six States than the Ninth, and that is the
reason for that.
Leading up to the addition of the 11 judges, the Congress
did that over our unanimous objection. I am talking about the
unanimous objection of the Fifth Circuit Court of Appeals, and
all the judges in the Fifth Circuit for that matter, the
district judges as well.
Chairman Sessions. What did the judges object to?
Judge Tjoflat. Objected to any more judges on the court of
appeals.
I had gone on the Middle District of Florida court in 1970,
and then went to the Fifth Circuit in 1975, and was familiar
with the general attitude. The problem from the trial judge
point of view was, what is the law of the circuit? We saw, as
the Fifth Circuit grew from, say, 11 to 13 and 13 to 15, that
the stability of the rule of law was impaired to some extent.
At any rate, when the quadrennial judgeship surveys that
the Judicial Conference would have every 4 years--when they
came to the Fifth Circuit, we said no more judges, and we had
our heels dug in. And so came 1979 and the bill was introduced.
As a matter of fact, we didn't even know it was coming. We knew
a bill was coming to add judges, but not 11 to our court. A
Senator from Arkansas introduced the bill, is my recollection.
But at any rate, we acquired ten new judges and we never
got the eleventh until late in the fall of 1979. We acquired
ten by the time September rolled around. Maybe we had 23. The
policy on the Fifth was that we sat en banc in September,
February and June every year, and we had a court meeting each
of those times.
I can't overemphasize the importance of an en banc
proceeding. It is absolutely essential to the health of the
Nation that the rule of law be stable, predictable and reliable
so that citizens can act in accordance therewith. When the law
is this way today and maybe that way tomorrow, people lose
their rights. They lose property rights, they lose their civil
liberties. It is a bad scene, and I think my colleagues on the
Ninth agree with that a hundred percent. Every judge does.
So we met in September 1979. I think we had 23 sitting
around the table, the old 15 and 8 new ones, and we decided not
to rehear any cases. The whole agenda was, what do we do with
this mob? We said that in a joking sort of way. So the newer
judges who had just been appointed in June, July, August and
September said, well, we think this will work. Well, of course,
they had no experience, but okay.
So the idea of what to do with the court was tabled for 1
year. So we met in February. Well, the en banc calendar in
February had the September cases and the February cases. I
don't recall how many, but by that time drugs were a big, huge
problem and we had cases in the Fifth Circuit where the Coast
Guard wanted to board ships on the high seas. Do you need a
search warrant? Do you need reasonable suspicion? Can the Coast
Guard do it? Will international law allow them to do it? Can
you do it in the contiguous zone? Can you do it in territorial
waters? What if the ship isn't flying a flag?
I am running out of time.
Chairman Sessions. Well, you are making a good story. That
is a good history. Maybe you can wrap it up.
Judge Tjoflat. I will wrap it up.
Chairman Sessions. This is not like the Eleventh Circuit,
however, Judge. When the light came on, I knew I had to hush,
especially when you were presiding.
Judge Tjoflat. Well, I will try to wrap it up this way. The
statute that gives the Ninth Circuit the right to have a mini
en banc gave the old Fifth, not the new Fifth, the old Fifth,
the same right. So after we sat in February, 1980--it is a
painful proposition to have 26 judges trying to decide a case
in conference, I tell you--we decided whether to have mini en
bancs after the first experience. Maybe it was even after the
second one, in June. This isn't working with this many people
sitting around the table.
So the discussion went this way: Well, we will have a mini
en banc of 11, but suppose 6 people out of 11 carry the day and
we have got 20 people on the court who disagree. Are we going
to re-en banc the case? If we do, what is the public
perception? This is the dialogue.
Well, the public perception is, and to the legal
profession, we will just keep re-en bancing cases until we get
a majority view out of the mini en banc court. So that would
make the mini en banc court a dry run, in effect. So we
decided, well, if we do the mini en banc, we are going to have
a blood oath that we will not re-en banc cases because we don't
want to create that perception.
We studied that for a good while and decided against it, so
we sat the full crowd. Sitting in an en banc court of that
size, I tell you, is not only an emotionally draining exercise.
It takes an enormous amount of work. And I will finish with
this: There is a group dynamic. You have a room full of 26
people trying to reach principle, not compromise, principle,
and some people are going to talk. The larger the group, they
are silenced. You take somebody who won't talk, won't speak;
they ``pass'' when it comes to them in an en banc conference of
26. You put that same individual on a three-judge panel and you
can't keep them quiet.
I have sat on en banc courts from 7 to 18, then skipped all
the way to 26. The reason for the lower numbers was because
after we split the circuit, which was easy to do because the
western States had 51 percent of the business and the eastern
States 49, so we didn't have the California problem--but I sat
on en banc courts in the Eleventh Circuit of 7, 8, 9, 10, 11
and 12.
We have more business in the Eleventh Circuit now than the
Fifth Circuit had when we split. With the exception of one
judge voting in the last 23 years, everybody has voted against
adding one more judge to the court, for the very reason that we
are concerned about the stability of the rule of law.
Chairman Sessions. I think that is a dramatic demonstration
of your belief in tangible terms that collegiality and
coherence of the circuit is endangered if you actually say you
don't want more judges to help you do the growing caseload.
The Eleventh has the highest caseload per judge in the
country, or close to that. Isn't that right?
Judge Tjoflat. Something like that.
[The prepared statement of Judge Tjoflat appears as a
submission for the record.]
Chairman Sessions. Judge Coughenour.
STATEMENT OF HON. JOHN C. COUGHENOUR, CHIEF JUDGE, U.S.
DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE,
WASHINGTON
Judge Coughenour. Thank you, Mr. Chairman. I welcome the
opportunity to express my views, and I think it is appropriate
that I be the last to speak because I think the value of the
views of a country boy from the wilds of Kansas is probably
appropriately positioned at the end.
Let me say, by the way, in case you are not aware of it, at
the new building in Seattle we are sharing courtrooms. We are
the first in the country to do that.
Chairman Sessions. I am impressed. Every magistrate does
not have their own courtroom?
Judge Coughenour. Every magistrate does not have their own
courtroom. Every judge does not have their own courtroom.
Chairman Sessions. I am impressed.
Judge Coughenour. We have two courtrooms for every three
judges.
Chairman Sessions. That makes sense, and it takes some
scheduling, but most of the time I am sure that works very
well. Do you think that works well?
Judge Coughenour. I think it is going to work just fine.
Something that hasn't been said here today which I think bears
scrutiny is that there is a phenomenon afoot in this country
recognized by all the chief judges at the most recent national
chief judges' conferences that we are trying fewer cases across
the country than was true. And in Seattle and in a number of
other districts, we are trying less than one-half the number of
cases than we were just a few years ago. So these concerns
about this constant growth may be premature.
In addition, I think it needs to be emphasized that the
tremendous growth in the Ninth Circuit filings is driven by and
large by immigration cases. As that glut works its way through
the court, those numbers are going to be back down at a much
more reasonable level.
On the subject of your question, let me state quite bluntly
my views on this subject have changed. When I went on the court
23 years ago, I was put there largely by the efforts of Senator
Slade Gorton, who was a close personal friend then and is still
a close personal friend. I must say that I could not say the
same thing about Ronald Reagan. I had never met the man, but
Senator Gorton was the one who put me where I am.
Senator Gorton was out front on the issue of splitting the
circuit, and largely out of loyalty to him I deferred to his
judgment on the question. When Senator Gorton retired from the
Senate, my objectivity on the issue was enhanced. And after a
couple of decades where the rubber meets the road, as opposed
to some of my colleagues here, I have to tell you that I don't
see these problems from down below where I am.
I don't have any difficulty following the law of the Ninth
Circuit. When I get to work each morning, I make my coffee. I
don't have a secretary, by the way, to save money. I make my
coffee and then I go sit down at my computer and I look at the
most recent summary of Ninth Circuit decisions, and it takes me
about 15 minutes each morning. We have a very effective way, by
technology, of alerting all of our judges in the circuit
immediately what the Ninth Circuit is doing and we can keep
abreast of it very easily. It is not a problem at all.
The problem that is perceived by many that these decisions
are being made down in California that affect us up in the
Northwest really is a problem of perception and a lack of
knowledge of what the facts are.
For example, probably the most controversial decision that
the people of the Northwest had difficulty accepting was the
so-called spotted owl decision, a ruling by a dear friend of
mine who is now gone, Bill Dwyer, from Seattle. We have another
very controversial decision in the Northwest right now
regarding the use of pesticides and herbicides adjacent to
salmon-bearing streams. You are looking at the judge who has to
be careful where his name is spoken out loud in the Northwest
right now because of that decision. I am not from California.
That is a northwesterner making a decision about northwestern
law.
The perception that we have all these problems in the
Northwest because we have these decisions coming out of the
Ninth Circuit that is dominated by California--there is a siren
song that attracts one to that conclusion, but upon examination
it fails.
The same is true for the attitude that large must be bad.
Again, there is a siren song that attracts one to that
conclusion, but it just doesn't bear scrutiny. For those of us
on the firing line applying the law everyday, who have perhaps
more responsibility than anyone else in this room to keep track
of what the law is in the Ninth Circuit, it is not a problem. I
do it everyday. I don't have any difficulty keeping up with the
Ninth. In fact, I welcome the number of Ninth Circuit decisions
we have because very often when I am struggling with a problem,
I can find a Ninth Circuit case right on point and it makes my
job a lot easier.
So I can give Judge Tjoflat my one minutes and 18 seconds,
if he wishes it.
[The prepared statement of Judge Coughenour appears as a
submission for the record.]
Chairman Sessions. Judge Coughenour, statistically
speaking, however, with the number of judges as they are
configured and as they are likely to be configured in the
future, the odds are pretty high that a salmon case in
Washington is going to be decided by California judges. Isn't
that right?
Judge Coughenour. Yes, and I think the odds are very high
that I will be affirmed.
Judge Tjoflat. That is because he is such an able judge.
Chairman Sessions. Well, I have got to tell you I am not a
speed reader, but people used to read the opinions, and now we
are reading summaries and I am not sure a summary can really
handle an opinion. You know, you can't do everything, but if
your circuit is not too large and the cases are not too many,
if you read that, it is a thorough education and it keeps you
up.
I remember when I was a prosecutor, I tried to read the
Federal criminal cases in the circuit and the Supreme Court. I
just got down to that, which was hard enough for me. Yes, a lot
of times you just skim the head notes and that kind of thing,
and you just have to.
Judge Tjoflat, would you comment on Harry T. Edwards, a
D.C.
Circuit Judge's comments that I quoted earlier? ``In the
end, collegiality mitigates against judges' ideological
preferences and enables us to find common ground and reach
better decisions. In other words, the more collegial the court,
the more likely it is that the cases that come before it will
be determined on their legal merits.''
Do you think there is a sense in which judges in a smaller
circuit feel more of a responsibility to come together and
speak coherently than in a 28-judge circuit?
Judge Tjoflat. I think all judges would like to have a good
intellectual exchange and relationship with their colleagues.
In the old Fifth Circuit days before we split, we figured out
how long it would take for everybody on the court to sit with
everybody else, and what has already been expressed was our
situation.
I don't think there is any question at all that when you
are sitting on panels with the same judge three or four times a
year and you are handling emergency matters administratively--
stays of execution in death penalty cases, for example, or
stays of deportation or stays of district court decisions of
great moment, stays in class actions, all that sort of thing--
the ability to mind-read your colleague is extremely important.
You don't even call for a law clerk or somebody. You know
who is on the panel with you and you know exactly how that
individual thinks and you know what they are interested in or
what may concern them, and so you get on a quick conference
call or use the e-mail or just a fax. If we merged the new
Fifth and the Eleventh together, it would take a good deal of
time to get to that point, if we could at all.
Judge Coughenour. Senator, could I make a comment about
that?
Chairman Sessions. Yes, please.
Judge Coughenour. When I joined my old law firm, I was
number 38. By the time I left the firm, it had almost 200
lawyers and there was a point that it passed through where
collegiality started becoming an issue. But it wasn't at 38 or
28; it was at more like 100 to 150 lawyers where collegiality
became an issue.
I have always understood that the most collegial
institution in the world is the U.S. Senate, and there are 100
members of the United States Senate.
Chairman Sessions. You have been ill-informed.
[Laughter.]
Chairman Sessions. And I won't even make a comment on the
Judiciary Committee.
[Laughter.]
Chairman Sessions. Well, you can work together. I know the
old Fifth had a series of tough civil rights cases in the early
days, and many times you were able to get virtually unanimous
support there that sent a signal. On the Richard Nixon case and
other cases, courts have gotten together and they have sat down
in a room and they have said we need to figure out what we can
agree on and render an opinion that we can all join in on.
Is that a factor, Judge Tjoflat?
Judge Tjoflat. Well, in the old Fifth Circuit days, we had
school desegregation cases in every village and town and city
in the South, and there were unanimous decisions just like in
Brown v. Board of Education in the Supreme Court, in 1954 and
1955, that carried forward into the 1970's.
Chairman Sessions. Judge Coughenour, a chief judge who has
supported some form of restructuring, former Chief Judge
William Browning, in Arizona, said this. He served on the White
Commission and he said, ``I think the people of the Ninth
Circuit today are receiving a rationed form of justice,'' close
quote, and that part of the reason the Ninth Circuit judges
resist dividing the circuit is that lawyers naturally have,
quote, ``an institutional bias against change.''
How would you respond to that?
Judge Coughenour. Well, I think I would never disagree with
my dear friend, Bill Browning. I think lawyers and judges tend
to be very conservative when it comes to change. I must say
that I have grown very fond of the Ninth Circuit and I am
enormously proud of the way it has been administered by our
chief judges and our current chief judge. I frankly believe
that we have the best chief judge in the United States right
now, and that we have every reason to be, if you will pardon
the term, a little defensive when it comes to the scrutiny that
is focused on us from time to time.
We are on the left coast and people do think a little
differently out there, and as a consequence the rest of the
country sometimes may have a little difficulty understanding
the way we think. But there is a West Coast mentality and there
is something to be said for a West Coast court that ties
together these many diverse States and people. I frankly am
very proud to be a member of that court and I will do what I
can to try to help the Senate understand why we should remain
the same.
Chairman Sessions. Well, thank you, Judge.
Do any of you have any further comments?
Let me just say that even judges whose judicial philosophy
I don't share that I may describe as an activist judge--you
have some extraordinarily capable judges on the court,
intellectually superior, and they make great opinions, even if
I would disagree with them.
I do think Senator Biden is basically correct, however,
that a case tried in Idaho ought to have the same ruling that
comes in Los Angeles or New York or Miami, for that matter. We
have got one law, one Constitution, one set of statutes, and
fundamentally they have to be in sync. I can imagine it is more
difficult to control panels when you have them all over the
place, and just mathematically the odds that you get a weird
panel with two of the three maybe having a more extreme view of
the law than would otherwise be the case is a factor.
Of course, most panels don't get overruled. Most circuit
cases are affirmed. Fifty-plus million people are bound by the
decisions of the Ninth Circuit, and if you are looking for left
coast law instead of Supreme Court law, then they are stuck
because the Supreme Court can't review them all.
But, anyway, you both have made good cases. We are going to
study this hard. My commitment to you is that if we do move
forward with something, my goal will be to create courts that
make sense that are not driven by ideology, because I think
there is no way people could affect ideology anyway, really, in
the way this court exists and the way it will be divided. So
let's just do it on merit.
If there is nothing further, we will adjourn the hearing. I
will note that we will keep the record open for two weeks for
any further questions or information that the members might
like to provide.
If there is nothing else, we are adjourned.
[Whereupon, at 1:07 p.m., the Subcommittee was adjourned.]
[Question and answer and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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<all>